Filed: Nov. 23, 2011
Latest Update: Feb. 22, 2020
Summary: 3, Claims of constitutional violations by state officers under, 42 U.S.C. § 1983 and claims of tort liability against state, officers under Puerto Rico law were dismissed for want of timely, prosecution and are not pursued on this appeal. Steagald v. United States, 451 U.S. 204, 205-06 (1981).
United States Court of Appeals
For the First Circuit
No. 09-2406
SILVIO SOLIS-ALARCÓN, MIGDALIA MÁRQUEZ ROBERTO,
CONJUGAL PARTNERSHIP SOLIS-MÁRQUEZ,
Plaintiffs, Appellants,
v.
UNITED STATES; FELTON CAMERON, Special Agent;
GREGG CALAM, Special Agent; JULIO C. ABREU LORA;
OSVALDO ALVARADO MIRANDA; AMARILIS CENTENO RAMOS;
JULIA CENTENO RAMOS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Boudin, Selya and Lipez,
Circuit Judges.
Luis A. Meléndez-Albizu and Law Offices of Luis A. Meléndez-
Albizu on brief for appellants.
Tony West, Assistant Attorney General, Rosa E. Rodriguez-
Velez, United States Attorney, Barbara L. Herwig and Edward
Himmelfarb, Appellate Staff, Civil Division, Department of Justice,
on brief for appellees.
November 23, 2011
BOUDIN, Circuit Judge. Early on the morning of September
18, 2003, agents of the Drug Enforcement Agency ("DEA") and Puerto
Rico police officers working as part of a joint federal-state task
force went to the residence at #I-17 Alondra St., Brisas de
Canóvanas, Puerto Rico. Whether this address is technically in
Carolina or the adjacent town of Canóvanas is not clear. One
officer knocked on the door, which was opened by the home's owner,
Silvio Solis-Alarcón. Solis-Alarcón says that the officers,
wielding guns, then entered the home without obtaining his
consent.1
The officers were there to arrest Juan Díaz-Suazo. From
intercepts and surveillance, the members of the task force had
ample reason to believe that Díaz-Suazo had engaged in drug
transactions as a member of a major drug ring, and a warrant had
been issued for his arrest. The agents aimed to arrest Díaz-Suazo
on the same day that, in accordance with an operational plan,
numerous other members of the drug ring were to be taken into
custody.
The DEA agents' belief that they would find Díaz-Suazo at
#I-17 Alondra Street rested on events that occurred earlier in the
year. In April 2003, task force officers identified Díaz-Suazo as
driving a red Dodge Durango in the course of a drug transaction,
1
The agents say that they had consent to enter and search the
house; but that is a disputed issue so at this stage we assume
arguendo that no consent was given.
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pulled him over to identify him and the vehicle and examined his
license. The vehicle turned out to be registered to plaintiff
Silvio Solis-Alarcón at Calle Alon, Urb. Brisas de Canóvanas. At
some point in September, officers on the task force made inquiries
in the neighborhood of the address on Díaz-Suazo's license and
concluded that he did not live at that address.
Puerto Rico police officers working with the task force
also reported that in September 2003 they had seen Díaz-Suazo drive
the same vehicle to Solis-Alarcón's house at #17 Alondra St., open
the garage door or gate, park the vehicle and close the entrance.2
The officers also reported that the garage door or gate door had
been opened by Díaz-Suazo through some kind of automatic or
electronic device. The officers remained outside for about 30
minutes; no one emerged from the house or garage.
Although the DEA agents who entered the house on
September 23, 2003, had a valid arrest warrant for Díaz-Suazo, they
had no warrant to search the house. DEA agents Felton Cameron and
Greg Calam questioned Solis-Alarcón and his wife Migdalia Márquez-
Roberto both of whom denied that Díaz-Suazo lived at the house and
said they did not know where he was. Solis-Alarcón then
accompanied the officers as they conducted a 15 to 20 minute search
2
Solis-Alarcón claims that these events took place on a single
day in April, but the relevant declarations make clear that police
undertook the surveillance of the house after determining that
Díaz-Suazo did not live at the address listed on his license.
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of the house while his wife remained in the living room answering
questions. Díaz-Suazo was not found in the house but the agents
did seize the Dodge from the garage as one that had been used in a
drug crime, although it was later returned as failing to meet the
minimum value warranting forfeiture under DEA policy.
Two years later, in September 2005, Solis-Alarcón and his
wife filed this action seeking $6 million for emotional distress
and punitive damages stemming from the search. The amended
complaint asserted Fourth Amendment claims against the two DEA
agents named above, based on Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and tort claims
against the United States for the agents' conduct asserted under
the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-
2680 (2006).3
After discovery, the government and the agents sought
summary judgment. In September 2007, the district court granted
summary judgment for the agents on the Bivens claims, concluding
that the agents were protected by qualified immunity. The court
later dismissed the FTCA claims, reasoning that its Bivens analysis
negated the fault element required for tort recovery under Puerto
Rico law. These two legal rulings, which we review de novo, are
3
Claims of constitutional violations by state officers under
42 U.S.C. § 1983 and claims of tort liability against state
officers under Puerto Rico law were dismissed for want of timely
prosecution and are not pursued on this appeal.
-4-
the focus of the present appeal and we start with the Bivens
claims.
It is settled Fourth Amendment law that "an arrest
warrant founded on probable cause implicitly carries with it the
limited authority to enter a dwelling in which the suspect lives
when there is reason to believe the suspect is within." Payton v.
New York, 445 U.S. 573, 603 (1980). Conversely, absent exigency or
consent, an officer may not search a third-party's residence on the
basis of an arrest warrant without having a search warrant for the
premises. Steagald v. United States,
451 U.S. 204, 205-06 (1981).
What, then, if the police are mistaken as to the
subject's residence? Our own position, conforming to that of most
other circuits, is that no Fourth Amendment violation occurs if
officers enter a third party's home under the reasonable belief
that the target named in the arrest warrant resides at the dwelling
in question and will be present at the time of the entry. United
States v. Werra, 638 F.3d 326, 336-37 (1st Cir. 2011); United
States v. Graham,
553 F.3d 6, 12-13 (1st Cir.), cert. denied,
129
S. Ct. 2419 (2009).4
It is clear that a reasonable belief requires something
more than "suspicion," but, even with the more demanding "probable
4
Accord, United States v. Cantrell, 530 F.3d 684, 690 (8th
Cir. 2008); United States v. Thomas,
429 F.3d 282, 286 (D.C. Cir.
2005), cert. denied,
549 U.S. 1055 (2006); United States v.
Lovelock,
170 F.3d 339, 343-44 (2d Cir.), cert. denied,
528 U.S.
853 (1999).
-5-
cause" test used for arrests, the Supreme Court has not used a
numerical formula. Rather, it has asked whether, given the
information available, a reasonably prudent man could believe that
the defendant had committed the crime. Beck v. Ohio, 379 U.S. 89,
91 (1964). So, too, the reasonableness inquiry here is whether the
agents could reasonably believe that Díaz-Suazo lived at the house
(and so would likely be present there in the early morning).
Federal officers sued for damages in a Bivens action,
like state officers sued under 42 U.S.C. § 1983, Wilson v. Layne,
526 U.S. 603, 609 (1999), have a further layer of protection
available to them, namely, qualified immunity where the officer
acted in the absence of guidance "sufficiently clear that a
reasonable official" would understand that he was violating a
right. Anderson v. Creighton,
483 U.S. 635, 640 (1987). Qualified
immunity applies not only to the question whether a constitutional
right exists but also to the judgment whether the general standard
applies to the facts at hand. Saucier v. Katz,
533 U.S. 194, 204-
05 (2001).
This extra layer of protection does not disappear merely
because the underlying Fourth Amendment standard is itself one of
reasonableness. The Supreme Court has drawn attention to the
potential confusion, Saucier, 533 U.S. at 203-205 ("reasonable
mistakes"); Anderson, 483 U.S. at 643-44 (possible to 'reasonably'
act unreasonably); but, in the end, qualified immunity against
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personal liability exists even for constitutional mistakes and
"protects 'all but the plainly incompetent or those who knowingly
violate the law.'" Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085
(2011) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)).
The Fourth Amendment standard is objective, United States
v. Proctor, 148 F.3d 39, 42 (1st Cir. 1998), and, where qualified
immunity is asserted, the district judge may apply it on summary
judgment so long as any disputed facts are assumed arguendo in
favor of the non-moving party. Lopera v. Town of Coventry,
640
F.3d 388, 395-96 (1st Cir. 2011). But, apart from consent, which
we have assumed was lacking, plaintiffs have not seriously
countered the DEA agents' version of the facts, especially their
description of what they knew and how they knew it.
This description establishes that Calam, Cameron and the
two police officers on the task force who furnished the information
described above all worked together. The DEA agents were entitled
to rely on plausible information supplied to them by fellow
officers, cf. United States v. Hensley, 469 U.S. 221, 232-33
(1985), and here the latter were themselves federally deputized on
the task force. "[W]here law enforcement authorities are
cooperating in an investigation . . . the knowledge of one is
presumed shared by all." Illinois v. Andreas,
463 U.S. 765, 771
n.5 (1983).
-7-
In a nutshell, the DEA agents had evidence that Díaz-
Suazo was twice seen using a vehicle registered to Solis-Alarcón
and parked at the latter's house; that Díaz-Suazo had access to the
garage and presumably the house; and that Díaz-Suazo did not live
at the address set out in his driver's license. Perhaps, too, they
could place weight on the judgment of the local officers that Díaz-
Suazo lived at #17 Alondra St. And, if he did live there, it would
be reasonable to believe him in residence early in the morning.
The judgment that he did live there would perhaps be a
close call if the issue before us were whether evidence seized in
the search should be suppressed. In many like search cases, the
police had more potent evidence of residence, such as statements of
the subject himself, extensive records linking the person to the
address, or a combination of a reliable tip, a recent police
report, and a contemporaneous witness identification.5 See also
Werra, 638 F.3d at 337 ("doubt[ing]" that an informant's tip could
support a reasonable belief that suspect lived in a rooming house).
However, such searches have occasionally been upheld on
thinner evidence, such as an anonymous tip combined with a
statement from a seemingly untrustworthy informant, United States
v. Pruitt, 458 F.3d 477, 481-83 (6th Cir. 2006), cert. denied,
549
U.S. 1283 (2007). Cf.
Thomas, 429 F.3d at 285-86. And, if there
5
United States v. Risse, 83 F.3d 212, 214-15 (8th Cir. 1996);
United States v. Route,
104 F.3d 59, 61-63 & n.1 (5th Cir.), cert
denied,
521 U.S. 1109 (1997);
Graham, 553 F.3d at 13.
-8-
was error at all in the present case, it was not so egregious as to
defeat qualified immunity. Assuming that the agents' judgment was
unreasonable, it was not "manifestly unreasonable." Ringuette v.
City of Fall River, 146 F.3d 1, 5 (1st Cir. 1998).
As for the search that occurred after entry, the
government invokes Maryland v. Buie, 494 U.S. 325 (1990), to
justify a protective sweep. The officers were not required to
accept plaintiffs' word that Díaz-Suazo was absent, Buie, 494 U.S
at 330; there was clear evidence that their vehicle had been used
in a drug deal by a man who recently had access to the premises.
A search, limited to places where Díaz-Suazo might reasonably be
hiding, was equally covered by qualified immunity.
While the search was being completed, Solis-Alarcón
accompanied the officers and his wife answered questions in the
living room; plaintiffs have suggested that this constituted an
unlawful detention and have also said that officers opened kitchen
drawers and looked through their mail, which would need explaining.
However, the plaintiffs have not developed the detention issue on
appeal and the scope of the search is raised only in the reply
brief and so is forfeited. United States v. Sacko, 247 F.3d 21, 24
(1st Cir. 2001).
This brings us to the FTCA claim against the United
States. Under the FTCA, the federal government
waives its sovereign immunity for 'injury or
loss of property . . . caused by the negligent
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or wrongful act or omission of any employee of
the Government while acting within the scope
of his office or employment, under
circumstances where the United States, if a
private person, would be liable to the
claimant in accordance with the law of the
place where the act or omission occurred.'
Abreu-Guzmán v. Ford, 241 F.3d 69, 75 (1st Cir. 2001) (quoting 28
U.S.C. § 1346(b)(1)).
In substance, the FTCA adopts respondeat superior
liability for the United States and, while it exempts intentional
torts from the sovereign immunity waiver, 28 U.S.C. § 2680(h), it
expressly allows actions for claims of "assault, battery, false
imprisonment, false arrest, abuse of process, or malicious
prosecution" arising out of "acts or omissions of investigative or
law enforcement officers of the United States Government." Id.
Like the government, we will assume that any wrongdoing incident to
the search falls within the waiver as a false imprisonment. Cf.
Unus v. Kane,
565 F.3d 103, 117 (4th Cir. 2009), cert. denied,
130
S. Ct. 1137 (2010).
The district judge, finding that the "federal defendants
exercised due care" and had been reasonable, rejected the FTCA
claims that the agents would be liable under Puerto Rico tort law.
Solis-Alarcón responds that Puerto Rico stringently protects
privacy and does not recognize qualified immunity. He suggests
that a Puerto Rico court would hold the agents liable in tort and
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that under the FTCA that liability has been assumed by the United
States.
Puerto Rico imposes liability for fault or negligence
that causes injury, P.R. Laws Ann. tit. 31, § 5141 (2010), but
protecting law enforcement agents for reasonable mistakes is
common, Unus, 565 F.3d at 117; Villafranca v. United States,
587
F.3d 257, 261 (5th Cir. 2009), and in at least two decisions, this
court assumed that Puerto Rico tort law would not impose personal
liability for mistaken arrests where the officers would be
protected in Bivens claims by qualified immunity. Rodriguez v.
United States,
54 F.3d 41, 45-47 (1st Cir. 1995);
Abreu-Guzmán, 241
F.3d at 75-76.
For the most part, the Puerto Rico cases cited to us by
Solis-Alarcón use standards that appear little different than our
own Fourth Amendment decisions. E.g., Pueblo v. Rivera-Colon, 128
P. 672 (1991) (certified translation) (applying Steagald). Many
are concerned not with civil liability of officers but with
suppression of evidence.6 One of the few cases dealing with civil
6
E.g., Pueblo v. Santiago Alicea, 138 P.R. Dec. 230 (1995)
(certified translation) (suppressing evidence where consent to
search found invalid); Pueblo v. Narvaez Cruz, 21 P.R. Offic.
Trans. 431, 436 (1988) ("It is a well-settled rule that a
warrantless search or seizure is per se unreasonable"); Pueblo v.
Malavé-González, 20 P.R. Offic. Trans. 487, 494 (1988) ("a
warrantless search or seizure produces a presumption of nullity").
But see Quiñones v. Commonwealth 90 P.R.R. 791, 794 (1964); Vázquez
Figueroa v. Commonwealth, 2007 TSPR 168 (2007) (certified
translation).
-11-
liability of officers, Valle Izquierdo v. Commonwealth, 2002 TSPR
64 (2002) (official translation), albeit refusing to dismiss
liability claims on much more egregious facts, spoke of the
importance of the state's law enforcement function and the need
to balance the right to compensation of a
citizen who is injured by the wrongful or
negligent acts of a state officer, and the
interests or, better said, the duty of
government authorities to act vigorously in
the investigation of criminal causes.
Id. at 12. See also
id. at 11 ("This compels us to strike a fair
and appropriate balance . . . .).
This is the view that animates federal qualified immunity
doctrine. Harlow v. Fitzgerald, 457 U.S. 800, 813-14 (1982). Were
this not Puerto Rico's position, a significant question might arise
whether any local court could impose damage liability on federal
officers where they would be exempt in a federal lawsuit and
whether Congress under the FTCA would expect the federal government
to shoulder such liability. See Caban v. United States,
728 F.2d
68, 75 (2d Cir. 1984) (Friendly, J. concurring). Given Rodriguez
and Abreu-Guzmán, these questions need not be pursued in this case.
Plaintiffs say that issues of Puerto Rico law should be
certified to the Puerto Rico Supreme Court, but this request came
too late and only after the district court rejected the FTCA claim.
See Boston Car Co. v. Acura Auto Div., Am. Honda Motor Co., 971
F.2d 811, 817 n.3 (1st Cir. 1992). A separate procedural claim has
been considered but needs no discussion. An evidentiary claim is
-12-
forfeit because it was developed only in a footnote in the opening
brief. Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 61
n.17 (1st Cir. 1999).
Affirmed.
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