Pagán-González v. Moreno, 032219 FED1, 16-2214

Docket Nº:16-2214
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:DAVID PAGÁN-GONZÁLEZ, et al., Plaintiffs, Appellants, v. ANA MORENO, et al., Defendants, Appellees.
Attorney:Osvaldo Carlo-Linares, with whom Carlo Law Office, LLC was on brief, for appellants. Joseph F. Busa, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, with whom Chad A. Readler, Acting Assistant Attorney General, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mark B...
Judge Panel:Before Torruella, Lipez, and Barron, Circuit Judges. BARRON, Circuit Judge, concurring.
Case Date:March 22, 2019
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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DAVID PAGÁN-GONZÁLEZ, et al., Plaintiffs, Appellants,

v.

ANA MORENO, et al., Defendants, Appellees.

No. 16-2214

United States Court of Appeals, First Circuit

March 22, 2019

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO HON. GUSTAVO A. GELPÍ, JR., U.S. DISTRICT JUDGE.

Osvaldo Carlo-Linares, with whom Carlo Law Office, LLC was on brief, for appellants.

Joseph F. Busa, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, with whom Chad A. Readler, Acting Assistant Attorney General, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mark B. Stern, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, were on brief, for appellees.

Before Torruella, Lipez, and Barron, Circuit Judges.

LIPEZ, Circuit Judge.

This case requires us to consider the constitutional boundaries for the use of deception by law enforcement officers seeking consent for a warrantless search. We conclude that the search at issue here violated the Fourth Amendment because the circumstances -- including a lie that conveyed the need for urgent action to address a pressing threat to person or property -- vitiated the consent given by appellants. We further hold that the defendants are not entitled to qualified immunity from civil liability for the unlawful search because any reasonable officer would have recognized that the circumstances were impermissibly coercive. However, we reject a related claim alleging malicious prosecution on the ground that, even if it had merit, the defendants would be entitled to qualified immunity.

We therefore vacate in part and affirm in part the district court's grant of defendants' motion to dismiss plaintiffs' complaint.

I. Background

Appellant David Págan-González claims that his Fourth Amendment rights were violated when federal agents unlawfully searched his computer, and when they subsequently arrested and detained him on child pornography charges based solely on the evidence obtained in the unlawful search. After the criminal charges were dropped, Pagán-González brought this suit for damages pursuant to Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).1 In Part A, we recount the largely undisputed facts of the underlying events, setting forth the complaint's well-pleaded facts in the light most favorable to the plaintiff. See Germanowski

v. Harris, 854 F.3d 68, 69 (1st Cir. 2017); Ocasio-Hernández v.

Fortuño-Burset, 640 F.3d 1, 7 (1st Cir. 2011). In describing the objectives and conduct of the defendant law enforcement officers, we also rely on an affidavit submitted by one of the agents in support of the criminal complaint against Pagán-González.2 In Part B, we describe the Bivens action and the district court's rationales for dismissing it.

A. The Challenged Conduct and Criminal Process

On October 23, 2013, approximately ten federal agents appeared at the door of the home shared by Pagán-González and his parents in Cabo Rojo, Puerto Rico. Special Agent Ana Moreno, one of two officers named as defendants, 3 identified herself as an FBI agent and reported that the law enforcement officers were there because a modem in a computer at the house was "sending a signal and/or viruses to computers in Washington." In fact, an FBI agent had downloaded child pornography from a computer that agents believed was located at that address, and the agents had come to the home to investigate.

The agents asked the family for consent to inspect their computers and said they would try to fix the modem that was sending transmissions to Washington. The agents explained that, if they could not make the repair, they would take the faulty computer and provide a replacement at the FBI's expense. Pagán-González, age 21, and his parents signed consent forms authorizing the computer searches.

After inspecting two computers, the agents told the family they needed to take Pagán-González's laptop. Pagán-González's father protested because his son, a college student, needed the computer for his classes, but the agents told the family they could no longer "touch or access" the laptop because it contained evidence of a crime. The family was not told that the agents had determined that the laptop contained "possible child pornography in the form of graphics, videos, and search terms" ---- as Agent Bonilla later reported in the affidavit for the criminal complaint.

The computer seized from Pagán-González was further examined by the FBI's Computer Analysis Response Team ("CART"). According to the CART report, the laptop contained numerous images and videos of minors engaged in sexually explicit conduct and also revealed that Pagán-González had both received from others and shared child pornography. Agent Bonilla thus prepared the criminal complaint alleging that Pagán-González had transported and received child pornography in violation of 18 U.S.C. § 2252(a)(1) and (2). On December 11, 2013, a magistrate judge issued a warrant for his arrest.

Early the next morning, December 12, Pagán-González and his parents were awakened when armed federal agents "burst into their home" to arrest Pagán-González. He remained in custody until his parents were able to post bond a week later. On January 9, 2014, a federal grand jury indicted Pagán-González for the crimes charged in the criminal complaint. He subsequently filed a motion to suppress the evidence obtained from the search of his computer, arguing that the agents' misrepresentations about their investigative purpose limited or vitiated the consent given by the family for examination of their computers. Pagán-González asserted that the deception rendered the search "unreasonable and illegal" and, hence, a violation of his Fourth Amendment rights. Instead of responding to the suppression motion, the government filed a motion to dismiss the case "[i]n the interests of justice."

B. The Bivens Action

On December 12, 2014 -- exactly one year to the day after Pagán-González's arrest -- he and his parents filed this civil lawsuit.4 Pagán-González alleged that he consented to the officers' entry and search only because the agents stated that they were looking for the source of the "signal and/or viruses" that had been detected in Washington, D.C. Hence, the entry, search, and seizure of the computers violated the Fourth Amendment because they were "tainted by Defendants' lie about the true reason" of "why they were there" and "what they were looking for." The complaint also asserted that Pagán-González's arrest, detention, and indictment violated his Fourth and Fifth Amendment rights because federal authorities relied "exclusively" on the "illegally obtained evidence" from the search to support the charges against him.

The defendants moved to dismiss the complaint for failure to state a claim. They argued that (1) any claim related to the search itself was time-barred, (2) the agents' entry to plaintiffs' home and search of their computers was lawful, and (3) the agents were in any event protected from liability for the entry and search by the doctrine of qualified immunity. With respect to Pagán-González's allegations of improper arrest, detention, and indictment -- which they characterized as a cause of action for malicious prosecution -- the defendants argued that the claim failed because the criminal charges were supported by probable cause and because "unjustified prosecution" does not give rise to a Bivens claim.5 The defendants' motion also challenged the factual adequacy of the claims, specifically with respect to Agent Bonilla's involvement in the search and Agent Moreno's involvement in the arrest and prosecution.

The district court dismissed the complaint in its entirety. See González v. Moreno, 202 F.Supp.3d 220 (D.P.R. 2016). The court held that the Fourth Amendment claim alleging that the agents unlawfully entered plaintiffs' home and searched their computers accrued on the day those acts occurred, October 23, 2013. Accordingly, it rejected that claim as time-barred because the suit was filed more than a year later, on December 12, 2014 -- i.e., outside the applicable one-year limitations period. Id. at 224. The court treated as timely Pagán-González's claim based on his arrest and the subsequent criminal process, but dismissed that claim as well because "the complaint is devoid of any allegations that would support a finding of lack of probable cause" for the charges brought against him. Id. at 226. Alternatively, the court concluded that the complaint did not provide a sufficient factual foundation to link the named defendants, Moreno and Bonilla, to the post-search criminal process underlying the malicious prosecution claim. See id. at 226-27.

In rejecting the claims, the district court commented that it was "appalled at the allegations that FBI agents would ask to enter [Pagán-González's] home without a warrant, and through a ruse, obtain consent from all family members to search and seize [his] laptop." Id. at 227. Nonetheless, it found meritless "[p]laintiffs' contention that any evidence obtained in violation of [Pagán-González's] constitutional rights would negate the probable cause found in this case." Id. Noting that the exclusionary rule does not apply in civil cases, the court cited precedent holding that, in the context of a civil malicious prosecution claim, the reliance on unlawfully obtained evidence does not "nullify the officers' probable cause to arrest." Id. (quoting Medina

v. Toledo, 718 F.Supp.2d 194, 207 (D.P.R. 2010), aff'd sub nom. Moreno-Medina v.

Toledo, 458 Fed.Appx. 4 (1st Cir. 2012)).

C. The Appeal

On appeal, Pagán-González challenges the district court's holdings on the statute of limitations, the viability of his...

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