USCA1 Opinion
United States Court of Appeals
for the First Circuit
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No. 97-1645
RAFAEL APONTE MATOS, ET AL.,
Plaintiffs, Appellants,
v.
PEDRO TOLEDO D VILA, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Selya, Stahl, and Lynch, Circuit Judges.
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Rafael Castro Lang with whom Marlene Aponte Cabrera was
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on brief for appellants.
Sylvia Roger-Stefani, Assistant Solicitor General, with
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whom Carlos Lugo-Fiol, Puerto Rico Solicitor General, and Edda
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Serrano-Blasini, Deputy Solicitor General, were on brief for
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appellees Toledo-D vila, Zapata, Ort z-D az, and Fern ndez.
John F. Nevares, with whom Lizzie M. Portela, Paul B.
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Smith, and Smith & Nevares were on brief for appellees Haddock,
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Torres-Lebr n, Laboy-Escobar, Col n, and Nieves-Dom nguez.
Isabel Mu oz Acosta, Assistant United States Attorney,
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with whom Guillermo Gil, United States Attorney, was on brief for
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appellees Plichta and Ilario.
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February 3, 1998
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LYNCH, Circuit Judge. A Puerto Rican family whose
LYNCH, Circuit Judge.
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home was searched under a warrant authorizing a weapons
search sued the intruding Puerto Rican and federal officers
and their supervisors on various claims of violation of civil
rights. The district court dismissed all claims against all
defendants in a series of summary judgment orders. One
argument made by plaintiffs on appeal leads us to reinstate a
portion of their case.
Plaintiffs claim that the Puerto Rican police
officer, Ernesto Laboy-Escobar, who filed the affidavit and
swore to facts in support of the search warrant lied in doing
so, fabricating the "facts" asserted in order to establish
probable cause. Plaintiffs' evidence presents genuine
disputes of fact as to whether the material representations
made by Laboy in the warrant application were true or were
fabricated. It has long been well established that such a
material fabrication violates the Warrant Clause of the
Fourth Amendment. Further, we have no doubt that officers
reasonably understand that they may not lie in order to
establish probable cause in a warrant application. If
plaintiffs are able to prove their claim at trial, Laboy will
not be protected by qualified immunity.
Accordingly, it was error to enter summary judgment
in favor of Laboy on that claim. But plaintiffs have not
made any showing that others assisted or even knew of the
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alleged falsehoods, nor have plaintiffs provided facts to
support the claim that the search itself was unreasonable.
For these and other reasons the dismissal of all other
defendants and all other claims is affirmed.
I.
Entry of summary judgment is reviewed de novo and
we take the facts in the light most favorable to the party
opposing summary judgment. See Acosta-Orozco v. Rodriguez-
___ _____________ __________
de-Rivera, 1997 WL 775350 at *1 (1st Cir. Dec. 22, 1997).
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On December 6, 1993, plaintiffs Cruz Mar a Andino
Serrano (Andino Serrano) and her daughter Mar a Aponte Andino
(Aponte Andino) were at home in R o Piedras, Puerto Rico,
when Aponte Andino noticed several unmarked cars approaching
the house. A group of people emerged from the cars and began
walking toward the house. One member of the group had an ax;
none was uniformed. Plaintiffs believed they were about to
be robbed. Without identifying themselves as police
officers, the individuals broke down the door to the house
with the ax and entered. Only after plaintiffs begged the
people not to kill them did the officers identify themselves
as police and show the two women a search warrant for the
house. The warrant authorized a search of plaintiffs' home
for weapons, and nothing else.
The officers conducted the search in an efficient
and orderly fashion, without the use of force. Several
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officers questioned the two women inside about whether there
were large sums of drug money hidden inside the house. FBI
Agent Michael Plichta also attempted to search the computer
files to find evidence of drugs or drug money, but could not
gain access to any files. The entire search lasted two
hours, and failed to turn up evidence of illegal weapons,
drugs, drug money, or, indeed, of any criminal activity.
Another daughter, Iris Teresa Aponte Andino (Iris Teresa),
returned and tried to enter the house. An officer outside
refused to let Iris Teresa through the blockade.
In May of 1995, Aponte Andino, Andino Serrano,
Rafael Aponte Matos (Andino Serrano's husband), and Iris
Teresa filed this action for damages under 42 U.S.C. 1983,
and against the federal officials under 28 U.S.C. 1331 and
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
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They alleged violations of the Fourth and Fourteenth
Amendment right to be free from unreasonable searches.
Plaintiffs sued two groups of defendants. The
first group is composed of the state and federal line
officers who participated in the search: Puerto Rican Police
Officers Ernesto Laboy-Escobar, Ernesto Torres Lebr n, Jimmy
Col n, Zulma Fern ndez, Iv n-Nieves Dom nguez, and FBI Agent
Michael Plichta. Plaintiffs alleged that these defendants
violated plaintiffs' right to be free from unreasonable
searches by fabricating facts to obtain the search warrant,
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conducting a search that exceeded the scope of the warrant,
and using excessive force in carrying out the search.1
Plaintiffs sued the second group of defendants, the
supervisors, alleging that they failed adequately to train
and supervise the first group of defendants. This group of
defendants included both state and federal supervisors:
Puerto Rico Police Department (PRPD) Superintendent Pedro
Toledo-D vila, PRPD Supervisor Carlos Haddock, PRPD Auxiliary
Superintendent of Inspection and Disciplinary Affairs Jos
Zapata, PRPD Lieutenant Juan Ort z-D az, and FBI Director
Lewis Freeh and an unidentified FBI supervisor named
"Ilario." Plaintiffs alleged that these defendants knew that
the officers involved in the search had records of violence,
and that the supervisors had callously disregarded
plaintiffs' constitutional rights by inadequately supervising
their subordinates.
All defendants moved for summary judgment based on
qualified immunity. On December 13, 1995, the district court
granted in part Agent Plichta's motion for summary judgment,
dismissing the claim that Plichta engaged in a "pretextual"
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1. Plaintiffs also alleged in their complaint that the
officials conducting the search deprived plaintiffs of their
right to counsel during the search. They alleged that their
lawyer was outside of the house, but the police would not
allow counsel to be with her clients inside. Plaintiffs do
not present this claim as a specific issue on appeal, nor
develop any argument regarding the claim, and it is deemed
waived. See King v. Town of Hanover, 116 F.3d 965, 970 (1st
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Cir. 1997) (collecting cases).
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search of plaintiffs' home. On May 29, 1996, the court
entered partial judgment dismissing plaintiffs' claim that
Plichta exceeded the scope of the warrant by searching
plaintiffs' computer files. On July 22, 1996, the court
entered partial judgment dismissing plaintiffs' claim against
the unnamed federal supervisor "Ilario." On April 4, 1997,
the court dismissed all the remaining claims against all
defendants on qualified immunity grounds. Plaintiffs appeal
all of these dismissals.
II.
Our review of the district court's grant of summary
judgment is de novo. See St. Hilaire v. City of Laconia, 71
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F.3d 20, 24 (1st Cir. 1995). We will affirm if "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). In order to overcome
defendants' motions for summary judgment, plaintiffs must
come forward with "specific, provable facts which establish
that there is a triable issue." Febus-Rodriguez v.
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Betancourt-Lebron, 14 F.3d 87, 91 (1st Cir. 1994). For a
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dispute to be "genuine," there must be sufficient evidence to
permit a reasonable trier of fact to resolve the issue in
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favor of the non-moving party. See United States v. One
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Parcel of Real Property, 960 F.2d 200, 204 (1st Cir. 1992).
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Qualified immunity protects both federal and state
officials from liability for damages in a civil rights action
if "a reasonable officer could have believed [his actions] to
be lawful, in light of clearly established law and the
information the [acting] officer[] possessed." Anderson v.
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Creighton, 483 U.S. 635, 641 (1987). There are two aspects
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to this standard. The first inquiry is whether the
constitutional right asserted by plaintiffs was clearly
established at the time of the alleged violation. The
second, if the right was clearly established, is whether a
reasonable officer in the same situation would "have
understood that the challenged conduct violated that
established right." Hegarty v. Somerset County, 53 F.3d
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1367, 1373 (1st Cir. 1995) (quoting Burns v. Loranger, 907
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F.2d 233, 235-36 (1st Cir. 1990)). If the first level of the
analysis yields a determination that the asserted
constitutional right was not clearly established at the
relevant time, then we need not proceed to the second prong;
there is qualified immunity. See Soto v. Flores, 103 F.3d
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1056, 1064-65 (1st Cir. 1997).
A. The Use of False Statements to Obtain a Search Warrant
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In 1978, the Supreme Court held in Franks v.
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Delaware, 438 U.S. 154 (1978), that the use of false
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statements to obtain a warrant, where the false statements
are necessary to the finding of probable cause, violates the
Fourth Amendment's warrant requirement. As the Franks Court
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noted, the Warrant Clause of the Fourth Amendment itself
contemplates the affiant's truthfulness:
[N]o warrants shall issue, but upon
probable cause, supported by Oath or
affirmation.
438 U.S. at 164 (quoting U.S. Const. amend. IV).
Franks involved a challenge to a warrant in a
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criminal proceeding and set forth the elements of a
challenge: there must be allegations of deliberate falsehood
or of reckless disregard for the truth on the part of the
affiant; these allegations must be supported by an affidavit
or sworn or otherwise reliable statements; the allegations
must point specifically to the portion of the warrant
application claimed to be false and must have a statement of
supporting reasons; and the material that is the subject of
the alleged falsity or reckless disregard must be necessary
to establish probable cause. See id. at 171-72. It is not
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enough to allege negligence or innocent mistake. See id.
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This court has consistently followed the Franks rule. See,
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e.g., United States v. Valerio, 48 F.3d 58, 62 (1st Cir.
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1995); United States v. Carty, 993 F.2d 1005, 1006 (1st Cir.
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1993).
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An officer who obtains a warrant through material
false statements which result in an unconstitutional search
may be held personally liable for his actions under 1983.2
"It has long been clearly established that the Fourth
Amendment's warrant requirement is violated when 'a false
statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in a
warrant affidavit if the false statement is necessary for a
finding of probable cause.'" Clanton v. Cooper, 129 F.3d
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1147, 1154 (10th Cir. 1997) (quoting Franks, 438 U.S. at 155-
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56). See also Krohn v. United States, 742 F.2d 24, 26 (1st
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Cir. 1984) (noting plaintiff's civil rights claim that
federal agent intentionally misrepresented facts necessary to
obtain warrant).
The force of the Franks rule in a 1983 action is
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reinforced by the decision of the Supreme Court this term in
Kalina v. Fletcher, 1997 WL 756635 (U.S. Dec. 10, 1997). In
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that case, the Court held that a prosecutor is not entitled
to absolute immunity for making false statements in an
affidavit supporting an application for an arrest warrant,
and may be personally liable for such actions. See id. at
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*3.
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2. This is similar to, and derives from the same
constitutional source as, the claim that an officer
reasonably should have known that facts alleged in support of
a warrant application were insufficient to establish probable
cause. See Malley v. Briggs, 475 U.S. 335 (1986).
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Here, plaintiffs allege that Laboy fabricated facts
in support of probable cause in order to obtain a warrant to
search plaintiffs' home, and that other defendants conspired
with Laboy to obtain this fraudulently procured warrant.
Plaintiffs have presented no evidence that other officers
conspired with Laboy to falsely obtain a search warrant, and
we readily affirm the district court's grant of summary
judgment on that claim.
As to Laboy, there is evidence that on December 2,
1993, FBI Agent Plichta received a tip that several
individuals intended to break into plaintiffs' home, hoping
to find two million dollars in hidden drug money and weapons,
and that they planned to murder plaintiffs. On December 3,
1993, Plichta notified Sergeant Carri n of the Puerto Rico
Police Department of the information, and suggested that they
obtain a warrant and search plaintiffs' home for the money.
We do not comment on the implicit suggestion that such
information alone could support a warrant. In any event, the
Puerto Rican Police did not seek a warrant on that basis.
On December 4, Plichta discussed the matter with
Laboy. Laboy told Plichta that on December 3, soon after
Plichta spoke with Carri n, Laboy had independently
established facts sufficient to show probable cause to search
plaintiffs' home. He said he had observed, while working on
another matter, an illegal weapon exchange in front of
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plaintiffs' home. On December 6, Laboy obtained a search
warrant based on his affidavit, and invited Plichta to
participate in the search.
Laboy's affidavit in support of his application for
a warrant stated:
[On the] 3rd day of December, 1993, at
about 4:30 p.m. I was in the area of
Cupey in R o Piedras, Puerto Rico trying
to locate an address about a complaint I
am investigating and upon arriving to the
Pedro Castro Road which is a dead end,
when I turn at the end of the same I
realized there was an individual
approximately 6 feet tall, with white
skin, brown hair giving a long wood and
black color firearm to another white
individual, who was approximately 5 feet
10 inches tall, wearing khaki pants and a
black sweater and at that time both
looked toward the vehicle I was in . . .
and the individual in the khaki pants and
black sweater walked toward the front and
gave the weapon once again to the 6'
individual with white skin and turned his
back and entered the residence. The
other individual also entered the
residence. . . . That for my experience
as investigating agent what was observed
by me there was a violation to the
Weapons Act of Puerto Rico and that said
residence is being utilized for the
custody of firearms.
The affidavit also described plaintiffs' house as the place
to be searched and added that "[t]he services of the K-9 Unit
of the Puerto Rico Police shall be utilized for this search
and seizure."
The district court granted summary judgment to
defendants, finding that "[p]laintiffs . . . have failed to
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produce a scintilla of non-speculative and reliable evidence
that the Defendant-Officers either knowingly used false
information or recklessly disregarded the truth in order to
obtain the warrant." We disagree with the district court,
and reverse the grant of summary judgment as to Laboy on this
claim.
Plaintiff Andino Serrano put in sworn evidence that
she was in her house at the time Laboy says he saw two men
enter the house.3 She says that no man entered the house.
She also says that the physical description given by Laboy of
one of the men who allegedly entered the house fits her
husband. But, she says, her husband did not enter the house
and was not at the house then. Her husband, plaintiff Rafael
Aponte Matos, confirms this and says he was elsewhere.
It is difficult to think of what more could be said
by the plaintiffs to raise a question as to the truth of
Laboy's statements in the affidavit that two men carrying a
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3. Andino Serrano's affidavit states:
I was at my house, and no male, not even
my husband, entered my house at 4:30 p.m.
on December 3, 1993. . . . I have read
the sworn declaration submitted in order
to procure a search warrant to search my
home on December 6, 1993, and although
the physical description of one of the
individuals described in said declaration
resembles my husband, I know for a fact
he was not at my house that day at that
time.
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weapon entered the plaintiffs' house.4 The plaintiff who was
home at the time says that did not happen. Plaintiffs also
suggest that Laboy had a motive to lie: he wanted access to
the house to see if there was a "narco-treasure" there, as
the information from Agent Plichta suggested.5 And finally,
plaintiffs note, when the house was searched, no illegal
weapon was found. This evidence tends to contradict Laboy's
statement in the affidavit that he saw two men, one with an
illegal weapon, entering the house, and that, based on his
observation and experience, this meant the house was
illegally being used for custody of firearms. That statement
was essential to the probable cause determination. See
___
Franks, 438 U.S. at 155-56.
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4. Laboy attempts to buttress his position through the
affidavit of Officer Nieves Dom nguez, who was with Laboy at
the time. But Nieves saw nothing himself and simply reports
what Laboy said after he made the alleged observations.
5. Plaintiffs say that on December 22, 1993, two weeks after
the police search, three unidentified individuals robbed
plaintiffs' home. One of them, dressed as a police officer,
said they were there to investigate the December 6 search.
When plaintiffs opened the door, the two other robbers drew
their guns and held plaintiffs Andino Serrano, Aponte Andino,
and Rafael Aponte Matos at gun point. The intruders
questioned plaintiffs about the $2 million dollars in drug
money. The robbers went directly to the places where
plaintiffs kept their valuables, and took money, a handgun,
and jewelry. Plaintiffs have alleged that the robbery was
connected to the prior police search.
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Our decision does not forecast whether plaintiffs
will succeed on this claim at trial; that is for the jury to
decide.6
B. The Claim That the Search Exceeded the Scope of the
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Warrant
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The warrant authorized a search of plaintiffs' home
for weapons, specifically for "anything [in plaintiffs' home]
that is in violation to [sic] the Weapons Act of Puerto
Rico." Plaintiffs claim that the searching police officers
and Agent Plichta exceeded the scope of the warrant by asking
them questions about two million dollars allegedly hidden in
the house and by Plichta's efforts to get into their computer
files.
The Computer Search
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The unlawful computer search claim against Plichta
is not properly before us, as plaintiffs failed timely to
perfect an appeal from the district court's entry of summary
judgment on that claim. On May 29, 1996, the district court
issued a Memorandum and Order granting summary judgment to
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6. The parties' briefing sometimes characterizes the Franks
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issue as an issue of whether there was a pretextual search.
We reject that conceptualization of the legal doctrines
involved. The Franks rule is as we have stated it; not
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whether the search was pretextual. Under the Fourth
Amendment reasonableness calculus, inquiry into an officer's
subjective motivations is rarely appropriate. See Ohio v.
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Robinette, 117 S. Ct. 417, 419 (1996); Whren v. United
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States, 116 S. Ct. 1769, 1774 (1996).
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Plichta on the computer search claim,7 and entered partial
judgment dismissing the claim. This was a final judgment
within the meaning of 28 U.S.C. 1291 and Fed. R. Civ. P.
54(b), and was immediately appealable to this court. Fed. R.
App. P. 4(a) required plaintiffs to file a notice of appeal
from that final judgment within 60 days. Plaintiffs did not
file a notice of appeal in this case until May 5, 1997, long
after the 60 day deadline had passed.8
The Search of the House
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The issue whether the district court erred in
granting summary judgment to the other defendants as well as
Plichta on the claim that the search exceeded the scope of
the warrant has been timely appealed.
In 1993 it was undoubtedly "clearly established"
that a search must not exceed the scope of the search
authorized in the warrant. See Maryland v. Garrison, 480
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U.S. 79, 84 (1986) ("By limiting the authorization to search
to the specific areas and things for which there is probable
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7. The court reasoned that because Plichta's attempt to
search plaintiffs' computer files was unsuccessful (due to an
apparent inability to "boot up" the hard drive), there was no
search within the meaning of the Fourth Amendment. We do not
address this conclusion because the appeal is untimely.
8. The appeal of the district court s grant of summary
judgment in favor of the unnamed federal supervisor "Ilario"
is not properly before us for the same reasons. The district
court entered partial judgment in favor of "Ilario" on July
22, 1996. Plaintiffs had 60 days to appeal the judgment, but
did not do so until the current appeal was taken on May 5,
1997.
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cause to search, the [Fourth Amendment particularity]
requirement ensures that the search will be carefully
tailored to its justifications, and will not take on the
character of the wide-ranging exploratory searches the
Framers intended to prohibit."); cf. Horton v. California,
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496 U.S. 128, 140 (1990) ("If the scope of the search exceeds
that permitted by the terms of a validly issued warrant . . .
the subsequent seizure is unconstitutional without more.").
But to state the rule is not to answer the question of when
the search does in fact exceed the warrant.
Plaintiffs' evidence is insufficient to show that
the officers who carried out the search are not entitled to
immunity. All plaintiffs offer is that when the officers
began their search, they "questioned" plaintiffs Andino
Serrano and Aponte Andino as to the whereabouts of two
million dollars in hidden drug money. There is no evidence
that the officers searched anywhere in the house that they
otherwise could not have searched for a weapon. See United
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States v. Ross, 456 U.S. 798, 820 (1982) ("A lawful search of
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fixed premises generally extends to the entire area in which
the object of the search may be found . . . ."). The Ross
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Court provided an illustration pertinent here: "A warrant
that authorizes an officer to search a home for illegal
weapons also provides authority to open closets, chests,
drawers, and containers in which the weapon might be found."
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Id. at 821. Further, at least for immunity purposes, an
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officer could reasonably think that weapons are more likely
to be in a house if there are millions of dollars hidden in
the house as well, and that the question was sufficiently
related to the warrant. The topic of questioning during an
encounter which itself does not violate the Fourth Amendment
is not so clearly defined against the officers as to deprive
them of immunity. Cf. Florida v. Royer, 460 U.S. 491, 497
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(1983) (officers do not violate Fourth Amendment by
approaching individual in public place and posing questions);
United States v. Mendenhall, 446 U.S. 544, 554 (1980) (Fourth
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Amendment not violated when officers ask questions of
individuals without particularized suspicion, where
reasonable person would not feel obligated to answer). There
is no suggestion that the searching officers ordered or
forced plaintiffs to answer the questions, and plaintiffs
were free not to answer. See Robinette, 117 S. Ct. at 421
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(Fourth Amendment reasonableness requirement not violated
where officer asks driver questions unrelated to initial
justification for stop, and driver voluntarily answers
questions and consents to search).
Plaintiffs' evidence is inadequate to overcome
qualified immunity. We affirm the district court's grant of
summary judgment dismissing the claim that the search
exceeded the scope of the warrant.
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C. Failure to Knock and Announce
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Plaintiffs assert that the officers who conducted
the search violated plaintiffs' Fourth Amendment rights by
failing to announce their presence and identify themselves as
police before they entered the house by breaking down the
door with an ax. The district court acknowledged that "upon
approaching the entrance to the home, the officers never
announced their presence or their purpose." It did not,
however, rule on the claim that this was a violation of
plaintiffs' rights, see Richards v. Wisconsin, 117 S. Ct.
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1416 (1997) (Fourth Amendment does not permit blanket
exception to knock and announce rule); Wilson v. Arkansas,
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115 S. Ct 1914 (1995) (failure to knock and announce forms
part of reasonableness inquiry), nor do we. Even assuming
that there is, on these facts, a right to have the police
knock and announce, the asserted right was not clearly
established as being of constitutional dimension at the time
the alleged violation occurred.
As Richards makes clear, Wilson neither announced
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an absolute knock-and-announce rule nor created categorical
exceptions to the rule for felony drug cases. In Richards,
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the court found that a no-knock entry into a hotel room was
justified where the officers had a reasonable suspicion that
the occupant would destroy the evidence if given the
opportunity. See Richards, 117 S. Ct. at 1422. We do not
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reach the question of whether it is reasonable for officers,
armed with a warrant to search for weapons, to fail to
announce they are police before they enter the area to be
searched, because we resolve this on immunity grounds.
In St. Hilaire, this court held that the
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requirement that officials identify themselves to the subject
of a search or seizure, absent exigent circumstances, was
"not clearly of constitutional dimension" until the Supreme
Court decided Wilson in 1995, and that the notice requirement
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"was not . . . clearly established in this Circuit as a
constitutional requirement until Wilson." St. Hilaire, 71
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F.3d at 28. We thus held that defendant officials' failure
to identify themselves to the plaintiff s decedent in 1990
did not violate a "clearly established law," and the
defendants were "entitled to qualified immunity on [the
failure to announce] theory." Id.
___
The same is true here. Plaintiffs' claim rests at
best on Wilson; Wilson was decided in 1995; the search of
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plaintiffs' residence occurred in 1993. We affirm the grant
of summary judgment to defendants on this claim.
D. Use of Excessive Force in Executing the Search
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Plaintiffs claim that the search of their home was
unreasonable because it was carried out with an excessive use
of force.
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Plaintiffs basic theory may be sound but their
arguments seek shelter in the wrong doorway. Plaintiffs
point us to the substantive due process "shocks the
conscience" standard announced in Rochin v. California, 342
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U.S. 165 (1952). But an "excessive force" claim that arises
in the context of a search or seizure is "properly analyzed
under the Fourth Amendment's 'objective reasonableness'
standard." Graham v. Connor, 490 U.S. 386, 388 (1989)
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(expressly rejecting the Rochin "shocks the conscience" test
______
where the claim arises in the context of an investigatory
stop). "The 'reasonableness' of a particular use of force
must be judged from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of
hindsight." Id. at 396; see also Alexis v. McDonald's
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Restaurants, 67 F.3d 341, 352 (1st Cir. 1995) ("[A] viable
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excessive force claim must demonstrate that the police
defendant's actions were not objectively reasonable, viewed
in light of the facts and circumstances confronting him and
without regard to his underlying intent or motivation.").
Plaintiffs point to the following actions in
support of their excessive force claim: the officers
failure to announce their presence, the use of 10 to 15
officers to carry out the search, the use of an ax to knock
down the door, the use of dogs during the search, and one
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officer s allegedly threatening behavior directed at
plaintiff Iris Teresa.
We will assume that there may be searches carried
out in such an excessive manner that they are unreasonable
under the Fourth Amendment. It is also true that the typical
"excessive force" claim arises in the context of an arrest
and generally involves physical contact and injury to the
arrestee. Here, there was no arrest, no physical force was
used on any of the plaintiffs, and none sustained physical
injury. To the extent there can be such a claim in the
absence of physical force, the plaintiffs themselves stated
in their depositions that the searching officers conducted
themselves in an orderly manner once inside the home. Under
these circumstances, we doubt any Fourth Amendment violation
at all has been stated, let alone one unreasonable enough to
overcome official immunity. See Hinojosa v. City of Terrell,
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834 F.2d 1223, 1229 (5th Cir. 1988) (in 1983 suit,
excessive force claim was not sustainable where there was no
evidence of physical injury).
The only allegation worthy of discussion is that
Officer Jimmy Col n directed abusive language at Iris Teresa
when she sought entry to plaintiffs' home, and that he
displayed his weapon and threatened to kill her if she did
not stay behind the police barricade.
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We assume that Iris Teresa's version of the facts
is accurate -- that Col n threatened her and pointed his gun
at her. Even so, as the district court held, defendant Col n
is entitled to qualified immunity. Iris Teresa insisted on
entering the house at the time a police search for weapons
was underway. Col n was posted at the blockade and it was
his duty to ensure that no one entered the house. He
reasonably could have believed that he needed to assert his
authority in order to prevent Iris Teresa from passing
through the blockade. Indeed, the threat may well have been
reasonably intended to avoid the need to use any physical
force to restrain her. There is no dispute that no physical
force was used. Cf. Hinojosa, 834 F.2d 1223, 1229-30.9 The
___ ________
evidence is plainly insufficient to sustain a finding that
Col n's actions were objectively unreasonable.
____________________
9. In Hinojosa, the Fifth Circuit confronted a similar
________
situation and found the lack of physical injury to be highly
relevant in deciding the excessive use of force claim:
There is absolutely no evidence . . .
that Hinojosa was struck, or even
touched, during the incident. Hinojosa
did not claim to have suffered even minor
physical injuries or intrusion. He
sought no medical attention. . . . Thus,
even stretching the testimony as far as
possible in a light most favorable to
Hinojosa, the only harm occasioned by
Jones' pointing his gun was the
understandable immediate emotional
distress of Hinojosa at being the target
of the gun point.
834 F.2d at 1230.
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E. Supervisory Liability
_____________________
Finally, we affirm the district court s grant of
summary judgment on the claim that defendants Haddock,
Toledo-D vila, Zapata, and Ort z-D az are liable in their
supervisory capacity. Plaintiffs argue that these defendants
were negligent in the training and supervision of the
searching officers, and that they therefore exhibited callous
indifference to plaintiffs constitutional rights.
Supervisory liability under 1983 "cannot be
predicated on a respondeat theory, but only on the basis of
the supervisor s own acts or omissions." Seekamp v. Michaud,
_______ _______
109 F.3d 802, 808 (1st Cir. 1997) (citations and quotation
marks omitted). There is supervisory liability only if (1)
there is subordinate liability, and (2) the supervisor s
action or inaction was "affirmatively linked" to the
constitutional violation caused by the subordinate. See id.
___ ___
(citing Lipsett v. University of Puerto Rico, 864 F.2d 881,
_______ __________________________
902 (1st Cir. 1988)). That affirmative link must amount to
"supervisory encouragement, condonation or acquiescence, or
gross negligence amounting to deliberate indifference."
Lipsett, 864 F.2d at 902.
_______
There is no possibility of subordinate liability
except for the falsification claim against defendant Laboy.
See supra. But plaintiffs' evidence does not link Laboy's
___ _____
supposed falsehoods to supervisory condonation or callous
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indifference. None of the defendants here had any connection
to Laboy's affidavit.
Plaintiffs offer evidence that defendant Haddock
pressured his subordinates to execute at least three search
warrants every month. They also offer documents they claim
prove Laboy's history of misconduct, including a 1989 Puerto
Rico Supreme Court case criticizing Laboy for having acted
irresponsibly in a criminal case in 1985. See People v.
___ ______
Castillo Morales, 123 P.R. Dec. 690 (1989). That Haddock may
________________
have exerted pressure on his staff to execute search warrants
is not evidence he acquiesced in or callously disregarded the
making of false statements to a judicial officer. And while
a supervisor's failure to take remedial actions regarding a
miscreant officer may result in supervisory liability where
it amounts to "deliberate indifference," see Diaz v.
___ ____
Martinez, 112 F.3d 1, 4 (1st Cir. 1997), a judicial opinion
________
citing Laboy as irresponsible in something he did nine years
before the events at issue here does not establish such
indifference.
III.
The district court's grant of summary judgment is
reversed and remanded with respect to the falsification claim
_____________________
against defendant Laboy in the obtaining of the search
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warrant, and affirmed with respect to all other claims,
________
including the claims against all the remaining defendants.10
Each side shall bear its own costs.
____________________
10. After oral argument, plaintiffs submitted a
"Supplemental Request for Relief." Plaintiffs request that
if we reverse as to some defendants, we remand to the
district court with the instruction that it exercise
supplemental (pendent party) jurisdiction over the remaining
defendants as to whom there are viable state law claims. See
___
28 U.S.C. 1367. The only claim as to which we are
reversing is the falsification claim against Laboy. As we
see it, the claim that Laboy made false statements in his
warrant application is entirely distinct from any state law
claims that might arise out of the execution of the search
itself. We decline plaintiffs' invitation to instruct the
district court to exercise supplemental jurisdiction; but we
do so without prejudice to plaintiffs' right to ask the
district court, in its discretion, to exercise supplemental
jurisdiction on remand.
Our disposition of this matter obviates the need to rule
on defendants' "Motion Requesting Appellants' Supplemental
Request for Relief Be Stricken," which they submitted in
response to plaintiffs' "Supplemental Request."
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