662 F.3d 577 (1st Cir. 2011), 09-2406, Solis-Alarcon v. United States

Docket Nº:09-2406.
Citation:662 F.3d 577
Opinion Judge:BOUDIN, Circuit Judge.
Party Name:Silvio SOLIS-ALARC
Attorney:Luis A. Mel
Judge Panel:Before BOUDIN, SELYA and LIPEZ, Circuit Judges.
Case Date:November 23, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 577

662 F.3d 577 (1st Cir. 2011)

Silvio SOLIS-ALARCÓ N, Migdalia Márquez Roberto, Conjugal Partnership Solis-Márquez, Plaintiffs, Appellants,


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.

No. 09-2406.

United States Court of Appeals, First Circuit.

November 23, 2011

Submitted Sept. 14, 2011.

Page 578

[Copyrighted Material Omitted]

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Luis A. Melé ndez-Albizu and Law Offices of Luis A. Melé ndez-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.

Before BOUDIN, SELYA and LIPEZ, Circuit Judges.

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, 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

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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 18, 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 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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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 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, 100 S.Ct. 1371, 63 L.Ed.2d 639 (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...

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