Pagan-Gonzalez v. Moreno , 919 F.3d 582 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 16-2214
DAVID PAGÁN-GONZÁLEZ, et al.,
Plaintiffs, Appellants,
v.
ANA MORENO, et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
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.
March 22, 2019
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
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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
1 A Bivens claim is an implied cause of action for civil
damages against federal officials that we treat for qualified
immunity purposes as equivalent to the statutory cause of action
against state officials provided by 42 U.S.C. § 1983. See
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 93 n.1 (1st Cir. 2013);
see also Pearson v. Callahan, 555 U.S. 223, 238 n.1 (2009) (noting
parenthetically that "the Court's decisions equate the qualified
immunity of state officials sued under 42 U.S.C. § 1983 with the
immunity of federal officers sued directly under the Constitution"
in a Bivens action (citing Harlow v. Fitzgerald, 457 U.S. 800, 818
& n.30 (1982)).
2 The criminal complaint and affidavit were attached as
exhibits to appellant's civil complaint. See, e.g., Foley v. Wells
Fargo Bank, N.A., 772 F.3d 63, 72 (1st Cir. 2014) (stating that,
in reviewing a motion to dismiss for failure to state a claim,
courts consider "the complaint, documents attached to it, and
documents expressly incorporated into it").
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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
3 The second named officer, Agent Claudia I. Bonilla, signed
the affidavit submitted with the criminal complaint. The civil
complaint in this case also listed as defendants "Unknown Agents
of the FBI and/or Federal Task Force 1 to 15," Moreno and Bonilla's
husbands, and the two officers' conjugal partnerships.
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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
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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.
4For the sake of simplicity, we refer to the claims and
arguments on appeal as if raised only by Pagán-González. However,
his parents -- David Pagán-Albino and Isabel González-Torres -- and
their conjugal partnership also are plaintiffs-appellants with
respect to the search-related claim.
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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.
5 In their motion to dismiss, the defendants observed that
Pagán-González appeared to invoke only the Fifth Amendment as the
basis for the malicious prosecution claim. The district court,
however, viewed the malicious prosecution allegations to assert
both Fourth and Fifth Amendment violations, but then found that
the claim was cognizable only under the Fourth Amendment. See
González v. Moreno, 202 F. Supp. 3d 220, 225 n.3 (D.P.R. 2016)
(citing Hernandez-Cuevas, 723 F.3d at 94). On appeal, neither
party protests the court's approach to the malicious prosecution
claim; accordingly, we limit our analysis to the Fourth Amendment.
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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
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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. App'x 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 malicious prosecution claim, and the agents' entitlement to
qualified immunity. Specifically, Pagán-González asserts that the
Fourth Amendment claim based on the officers' entry to his home
and search of his computer was timely because it did not accrue
until the day of his arrest. As for deficiencies in the factual
allegations, Pagán-González maintains that he should have been
allowed to conduct discovery to ascertain "[t]he specific
participation of each agent" in the challenged conduct. He also
argues that the malicious prosecution claim should proceed because
initiating and prosecuting criminal charges premised solely on
illegally seized evidence violates the Constitution, and a
reasonable officer would have understood as much.
Appellate review of a district court's grant of a motion
to dismiss is de novo. Giragosian v. Bettencourt, 614 F.3d 25, 28
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(1st Cir. 2010). We begin that review in Section II with the
district court's ruling on the search-related Fourth Amendment
claim. In Section III, we address the dismissal of the malicious
prosecution claim.
II. The Entry to the Home and the Computer Search
A. Statute of Limitations
State law determines the statute of limitations for a
federal civil rights cause of action, see Barrett ex rel. Estate
of Barrett v. United States, 462 F.3d 28, 38 (1st Cir. 2006), and
it is undisputed that Puerto Rico's one-year limitations period
for personal injury actions applies here, see Roman v. Townsend,
224 F.3d 24, 29 (1st Cir. 2000) (noting "the settled proposition"
that plaintiffs' Bivens claim was subject to Puerto Rico's one-
year limitations period). The accrual date for such claims,
however, is governed by federal law. "Under federal law, the
statute of limitations on a Bivens claim begins to run when the
plaintiff knows or has reason to know of the existence and cause
of the injury which is the basis of his action." Barrett, 462
F.3d at 38-39 (quoting Van Tu v. Koster, 364 F.3d 1196, 1199 (10th
Cir. 2004)).
Pagán-González argues that the district court erred in
finding that the entry-and-search claim accrued when the officers
took those actions. We agree. On the day of the search, Pagán-
González and his parents were told that the agents needed to enter
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their home and inspect their computers to address a virus or signal
that was detected by authorities in Washington, D.C. They neither
knew that day, nor had reason to know, that the agents had
misrepresented their purpose and elicited consent to search based
on a falsehood.6 Although they were told that evidence of a crime
had been found on Pagán-González's laptop, they could not have
known that the evidence related to a crime committed by Pagán-
González or to a matter other than the one the agents had
identified as the reason they needed to search.
Hence, only when the agents returned on December 12 to
arrest Pagán-González on the child pornography charges did he and
his parents "know of the existence and cause of the injury which
is the basis of [the] action." Barrett, 462 F.3d at 39 (quoting
Van Tu, 364 F.3d at 1199). In other words, not until the real
purpose for the agents' actions was revealed could Pagán-González
understand that the agents had deliberately misled him to elicit
consent for a warrantless search -- a tactic he claims invalidated
his acquiescence. The limitations period starts running "one day
after the date of accrual," Centro Medico del Turabo, Inc. v.
Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005), and thus the
6 Agent Bonilla's affidavit states that, during the agents'
first visit to his home, Pagán-González acknowledged that "he would
download and exchange images and videos of minors engaging in
sexual activity." However, Pagán-González has denied making that
admission, and, taking the facts in the light most favorable to
him, we disregard the asserted admission in assessing the claims.
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limitations period for Pagán-González's search-based claim began
to run on December 13, 2013. Accordingly, the claim -- filed on
December 12, 2014, the one-year anniversary of his arrest -- was
timely.
B. The Merits and Qualified Immunity
Defendants argue that dismissal of the search-related
claim should be upheld on the alternative ground that the ruse
used by the officers was constitutionally permissible.7 And, they
say, "at the very least, the defendants are shielded from civil
liability by qualified immunity." Both of those rationales are in
fact components of the qualified immunity analysis. "[O]fficers
are entitled to qualified immunity under § 1983 unless (1) they
violated a federal statutory or constitutional right, and (2) the
unlawfulness of their conduct was 'clearly established at the
time.'" Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)
(emphasis added) (quoting Reiche v. Howards, 566 U.S. 658, 664
(2012)). Because we conclude that the officers' deception
invalidated the consent given for their warrantless entry and
search, thus rendering those actions unlawful, we must also
7 Pagán-González appears to have appealed only the statute-
of-limitations ruling on the search claim. However, the government
makes no waiver argument concerning the merits and, indeed, it
urges us to find in its favor on the validity of the search. We
may affirm the dismissal on any ground supported by the record,
see, e.g., Flores v. OneWest Bank, F.S.B., 886 F.3d 160, 164 (1st
Cir. 2018), and, accordingly, we discuss the merits.
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consider the second prong of the inquiry: whether the defendants
are nonetheless entitled to qualified immunity because no
reasonable officer would have understood that her conduct violated
the Fourth Amendment. See Hill v. Walsh, 884 F.3d 16, 21 (1st
Cir. 2018) (citing Wesby, 138 S. Ct. at 589).
1. The Consent Exception to the Warrant Requirement
The sanctity of the home is at the core of the Fourth
Amendment's protection against unreasonable governmental
intrusions. See Payton v. New York, 445 U.S. 573, 585 (1980)
("[T]he 'physical entry of the home is the chief evil against which
the wording of the Fourth Amendment is directed.'" (quoting United
States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972))). The
Supreme Court has thus "consistently held that the entry into a
home to conduct a search or make an arrest is unreasonable under
the Fourth Amendment unless done pursuant to a warrant." Steagald
v. United States, 451 U.S. 204, 211 (1981). Longstanding
precedent, however, carves out an exception to the warrant
requirement for consensual searches. See, e.g., Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973); United States v. Coombs, 857
F.3d 439, 448 (1st Cir. 2017). As one court has noted, "[a]
validly obtained and voluntary consent renders a search or seizure
reasonable, thus eliminating the need for a warrant." United
States v. Parson, 599 F. Supp. 2d 592, 601 (W.D. Pa. 2009).
The Supreme Court has described consent as a "'jealously
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and carefully drawn' exception" to the warrant requirement.
Georgia v. Randolph, 547 U.S. 103, 109 (2006) (quoting Jones v.
United States, 357 U.S. 493, 499 (1958)). The government thus
fittingly bears the burden to prove valid, voluntary consent, see
Schneckloth, 412 U.S. at 222; United States v. Vázquez, 724 F.3d
15, 18 (1st Cir. 2013), and courts evaluate voluntariness in this
context with the same close scrutiny of the circumstances
prescribed by the Supreme Court for assessing the voluntariness of
a confession, see Schneckloth, 412 U.S. at 226-27; Coombs, 857
F.3d at 449. That totality-of-the-circumstances review must take
into account, where appropriate, "any evidence that law
enforcement officers' fraud, deceit, trickery or misrepresentation
prompted defendant's acquiescence to the search." United States
v. Vanvliet, 542 F.3d 259, 264 (1st Cir. 2008); see also, e.g.,
United States v. Spivey, 861 F.3d 1207, 1213 (11th Cir. 2017)
("Deceit can . . . be relevant to voluntariness."); Vázquez, 724
F.3d at 19 (stating that courts must consider whether law
enforcement officers' misrepresentations prompted defendant's
consent to the search).8
8 We have observed that other
[f]actors relevant to voluntariness may
include, but are not limited to: (i) the
consenter's age, education, past experiences,
and intelligence; (ii) whether law enforcement
officials advised the consenter of his
constitutional right to refuse consent; (iii)
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Thus, to find the search lawful as the government urges,
we must conclude that the consent to enter and search given by
Pagán-González and his parents to the FBI agents was "validly
obtained and voluntary" notwithstanding the agents' deception
concerning their purpose. Parson, 599 F. Supp. 2d at 601. Before
evaluating the particular facts here, we describe the existing
case law on the use of deception by law enforcement officers,
including to obtain consent.
2. Deception by Government Authorities
i. General Principles
It is beyond debate that deception is a well-established
and acceptable tool of law enforcement. See, e.g., Sorrells v.
United States, 287 U.S. 435, 441 (1932) ("Artifice and stratagem
may be employed to catch those engaged in criminal enterprises.").
Indeed, undercover investigations in which government agents
misrepresent their identities are ubiquitous and viewed as
essential in the detection of crime. See, e.g., Lewis v. United
States, 385 U.S. 206, 208-09 (1966) ("[I]t has long been
acknowledged by the decisions of this Court that, in the detection
of many types of crime, the Government is entitled to use decoys
the length and conditions of the consenter's
detention and/or questioning; and (iv) law
enforcement officials' use of any inherently
coercive tactics.
Vanvliet, 542 F.3d at 264 n.2.
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and to conceal the identity of its agents." (citations and footnote
omitted)); id. at 210 (noting that a prohibition on the use of
undercover agents would "severely hamper the Government in
ferreting out those organized criminal activities that are
characterized by covert dealings with victims who either cannot or
do not protest").9 The right to deceive, however, is not unbounded.
"The various protections of the Bill of Rights . . . provide checks
upon such official deception for the protection of the individual."
Id. at 209.
Consistent with the precedent described above, one such
limitation is that government agents' deceptive tactics must not
9 We note that, despite widespread acceptance, not everyone
agrees that nondisclosure or an affirmative misrepresentation of
a police officer's identity is compatible with a finding that the
unknowing or deceived defendant acted voluntarily in interacting
with law enforcement. See 2 Wayne R. LaFave et al., Criminal
Procedure § 3.10(c) (4th ed. 2017):
Though some consider even Lewis as
objectionable on the ground that we should
"regard deliberate deception about an
obviously material -- indeed controlling --
fact as inconsistent with voluntariness," a
more appropriate concern is that of keeping
the above-stated principle within reasonable
bounds. One attractive proposal is that
permissible deception by a stranger must
include a stated intention on his part to join
the consenting party in criminal activity, for
in that way innocent persons will be spared
from intrusions upon their privacy by
deception.
(Footnotes omitted.)
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prevent a target from making "an essentially free and unconstrained
choice" to forgo the constitutional protection of a warrant.
Schneckloth, 412 U.S. at 225. In perhaps the most familiar
undercover scenario -- a law enforcement officer posing as a drug
buyer to gain entry to a home or hotel room -- the deception is
deemed acceptable under the Fourth Amendment because the targeted
seller has freely made the choice to expose his criminal activity
to others. That is, he has voluntarily assumed the risk of
inviting individuals whom he knows he cannot control into his
residence. See Hoffa v. United States, 385 U.S. 293, 303 (1966)
("The risk of being . . . deceived as to the identity of one with
whom one deals is probably inherent in the conditions of human
society. It is the kind of risk we necessarily assume whenever we
speak." (quoting Lopez v. United States, 373 U.S. 427, 465 (1963)
(Brennan, J., dissenting))); see also id. at 302 ("Neither this
Court nor any member of it has ever expressed the view that the
Fourth Amendment protects a wrongdoer's misplaced belief that a
person to whom he voluntarily confides his wrongdoing will not
reveal it."); cf. Lewis, 385 U.S. at 211 ("A government agent, in
the same manner as a private person, may accept an invitation to
do business and may enter upon the premises for the very purposes
contemplated by the occupant.").
The dynamic is meaningfully different, however, when
police officers identify themselves as such but misrepresent their
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purpose. Because citizens will respond to law enforcement with a
sense of obligation and presumption of trustworthiness, multiple
courts have held facially consensual searches to be invalid where
the "consent" was elicited through officers' lies about the nature
or scope of their investigations. See, e.g., United States v.
Bosse, 898 F.2d 113, 115 (9th Cir. 1990) (per curiam) (invalidating
consent where federal agent investigating possible firearms
violations was depicted as a state licensing official: "A ruse
entry when the suspect is informed that the person seeking entry
is a government agent but is misinformed as to the purpose for
which the agent seeks entry cannot be justified by consent."); id.
at 115 (stating that "entry . . . acquired by affirmative or
deliberate misrepresentation of the nature of the government's
investigation" violates the Fourth Amendment (quoting United
States v. Little, 753 F.2d 1420, 1438 (9th Cir. 1984))); SEC v.
ESM Gov't Sec., Inc., 645 F.2d 310, 316-18 (5th Cir. Unit B May
1981) (holding that federal agent's deliberate, effective
misrepresentation of purpose to gain access to records would be
impermissible: "When a government agent presents himself to a
private individual, and seeks that individual's cooperation based
on his status as a government agent, the individual should be able
to rely on the agent's representations."); United States v. Tweel,
550 F.2d 297, 300 (5th Cir. 1977) (finding consent vitiated by
misrepresentation that investigation was civil, not criminal);
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Parson, 599 F. Supp. 2d at 608 (finding government's burden to
show voluntary consent unmet where, inter alia, agents
investigating child pornography gained entry and searched a
computer after advising the defendant he might be a victim of
identity theft); People v. Daugherty, 514 N.E.2d 228, 233 (Ill.
App. Ct. 1987) ("Where, as here, the law enforcement officer
without a warrant uses his official position of authority and
falsely claims that he has legitimate police business to conduct
in order to gain consent to enter the premises when, in fact, his
real reason is to search inside for evidence of a crime, we find
that this deception under the circumstances is so unfair as to be
coercive and renders the consent invalid."); cf. United States v.
Watzman, 486 F.3d 1004, 1007 (7th Cir. 2007) (noting that
government did not challenge finding that search was invalid where
officers conducted a "phony 'burglary follow-up'" ruse to
investigate child pornography); United States v. Turpin, 707 F.2d
332, 334 (8th Cir. 1983) (upholding lawfulness of consent search,
but stating that "[m]isrepresentations about the nature of an
investigation may be evidence of coercion").
Courts troubled by agents' lies about the searches they
seek to conduct have worried that condoning such falsehoods "would
obliterate citizens' widely shared social expectations that they
may place some modicum of trust in the words of government
officials acting as such," with that lack of trust producing
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"catastrophic consequences." Parson, 599 F. Supp. 2d at 606. In
a passage quoted multiple times by other courts, the Fifth Circuit
observed that private individuals have "the right to expect that
the government, when acting in its own name, will behave
honorably." ESM Gov't Sec., Inc., 645 F.2d at 316. In particular,
the court stated, "[w]e think it clearly improper for a government
agent to gain access . . . which would otherwise be unavailable to
him by invoking the private individual's trust in his government,
only to betray that trust." Id.; see also Parson, 599 F. Supp. 2d
at 606 ("Society expects that law enforcement officers who present
themselves and show badges will be honest and forthright with the
community that they serve.").
Yet, despite the broadly framed objections of courts to
deception by known government agents, the general consensus in the
case law is that such deception, including lying about the purpose
of an investigation, is not categorically off-limits in obtaining
consent to search.10 The question instead is whether the deception
10 Multiple commentators, however, have questioned the
constitutional validity of officer deception about purpose in
seeking consent to search. See, e.g., Laurent Sacharoff, Trespass
and Deception, 2015 B.Y.U. L. Rev. 359, 364 (2015) (relying on
Supreme Court's trespass analysis in recent Fourth Amendment cases
to propose that "when a person lies about her identity and purpose
to obtain consent to enter private property, that deception
vitiates consent, thereby transforming the entry into a
trespass"); id. at 366-67 (stating that police deception should
fall within this rule); William E. Underwood, Note, A Little White
Lie: The Dangers of Allowing Police Officers to Stretch the Truth
as a Means to Gain a Suspect's Consent to Search, 18 Wash. & Lee
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in context rendered the consent involuntary. In a recent Eleventh
Circuit decision, for example, the court acknowledged that "fraud,
deceit or trickery in obtaining access to incriminating evidence
can make an otherwise lawful search unreasonable," Spivey, 861
F.3d at 1214 (quoting United States v. Prudden, 424 F.2d 1021,
1032 (5th Cir. 1970)) (emphasis added in Spivey), but cautioned
that deception by officers relying on their status as government
agents "does not always invalidate consent," id.; see also id. at
1215 (stating that the ruse used by officers "was a relatively
minor deception that created little, if any, coercion"). See also,
e.g., People v. Zamora, 940 P.2d 939, 943 (Colo. App. 1996)
(upholding trial court's finding of consent "[a]lthough the
officers may have partially misrepresented their purpose by not
disclosing they were investigating a rape rather than a domestic
dispute").
Spivey, in which one panel member dissented,11 provides
J. Civ. Rts. & Soc. Just. 167, 206 (2011) (proposing, as a
"workable rule," that when police officers identify themselves as
such, they "must fully inform the suspect of the main purpose of
their visit in order to validly obtain any consent to search"
(emphasis omitted)); Rebecca Strauss, Note, We Can Do This the
Easy Way or the Hard Way: The Use of Deceit to Induce Consent
Searches, 100 Mich. L. Rev. 868, 882 (2002) (stating that "courts
should consider deceit as coercion," and, "[s]ince coercion
negates consent, police deception should negate any resulting
consent").
11The Supreme Court denied certiorari in the case. See Spivey
v. United States, No. 17-7046, 2018 WL 2767783 (U.S. June 11,
2018).
- 21 -
a useful illustration of the other considerations that may come
into play in assessing the impact of deception by known government
agents. There, a pair of defendants sought to suppress evidence
of credit card fraud found at their home on the ground that the
searching officers had obtained consent to search by falsely
claiming to be following up on two burglaries the defendants had
reported. See 861 F.3d at 1210. In reality, the burglar already
had been caught, and he had told the police about the fraud
evidence he had seen at the defendants' home. Id. at 1210-11.
Despite the officers' misrepresentation of their
purpose, the panel majority upheld the district court's finding
that the consent to search was voluntary. The majority emphasized
that one of the defendants had "made a strategic choice to report
the burglary and to admit the officers into her home." Id. at
1211. In those circumstances, the judges explained, it was not
"clear error for the district court to find that, although the
burglary investigation was 'not the main or real reason' for the
search, it was 'a legitimate reason for being there.'" Id. at
1214. And, importantly, the consenting defendant "understood that
she faced a risk that [the law enforcement agent] would notice
evidence of the credit-card fraud." Id. at 1215; see also id. at
1216 ("Austin and Spivey informed the police of the burglaries and
invited their interaction. The officers did not invent a false
report of a burglary, nor claim any authority that they lacked.").
- 22 -
ii. Consensus on Impermissibly Coercive Deception
Notwithstanding the need in each case to consider the
totality of the circumstances, there is consensus in the precedents
that two types of deception have an impermissibly coercive effect.
First, the Supreme Court has soundly rejected the consent to search
obtained by officers who falsely claim they have a warrant. See
Bumper v. North Carolina, 391 U.S. 543, 550 (1968). That
situation, the Court explained, is "instinct with coercion"
because the officer "announces in effect that the occupant has no
right to resist the search." Id. It is thus well established, in
our own law and elsewhere, that "deception invalidates consent
when police claim authority they lack." Spivey, 861 F.3d at 1213;
see also, e.g., Vázquez, 724 F.3d at 22 ("The law is clear . . .
that consent to a search is invalid if given only because of an
officer's knowingly false assurance that there will soon be a
lawful search anyway." (citing Bumper)); Hadley v. Williams, 368
F.3d 747, 749 (7th Cir. 2004) (stating that consent was "vitiated
not only by the claim of the police to have a warrant . . . but
also by fraud," and explaining that the consent "was procured by
an outright and material lie [that the police had a warrant], and
was therefore ineffectual").
Second, relying on equivalent reasoning, courts have
regularly held that coercion is implicit when officers falsely
present a need for urgent action: "[W]hen an officer lies about
- 23 -
the existence of exigent circumstances, he also suggests that the
occupant has no right to resist and may face immediate danger if
he tries." Spivey, 861 F.3d at 1213 (citing United States v.
Harrison, 639 F.3d 1273 (10th Cir. 2011), where "agents falsely
implied that a bomb was planted in the apartment they sought to
search"); see also United States v. Montes-Reyes, 547 F. Supp. 2d
281, 291 (S.D.N.Y. 2008) (finding lack of consent where officers
falsely stated they sought entry to hotel room to search for a
missing girl, but planned to search for drugs, because police
fabricated a "grave emergency"); Krause v. Commonwealth, 206
S.W.3d 922, 926 (Ky. 2006) (finding coercion where officers
obtained consent to search a residence based on a false report
that a young girl claimed she had been raped at that location);
People v. Jefferson, 350 N.Y.S.2d 3, 4 (N.Y. App. Div. 1973) (per
curiam) (finding that "the ruse [of a possible gas leak] used by
the police to gain access to the apartment and therefore the
subsequent search and arrests were violative of defendant's
constitutional rights"); cf. United States v. Hardin, 539 F.3d
404, 424-25 (6th Cir. 2008) (finding that consent would be invalid
where apartment manager, acting at behest of police, entered
apartment purportedly to investigate a non-existent water leak);
Zamora, 940 P.2d at 943 (finding valid consent, but noting that
"[t]he police did not feign an emergency, conceal their identities,
- 24 -
or misrepresent their authority").12
Beyond the coercion inherent in the false emergency
scenario, multiple courts have emphasized "the potential public
policy hazard created when police officers make false claims of
exigent circumstances." Montes-Reyes, 547 F. Supp. 2d at 288 n.10.
In order to ensure cooperation in truly life-
threatening situations, it is vital to
maintain the public trust in emergency
services. When the police or the gas company
come to the door warning of a real gas leak or
other life-threatening emergency, it is in
everyone's interest that they be believed.
Sanctioning the type of deception engaged in
here [phony gas leak] would send a message to
all those with reason to fear "the system"
(whether they be law abiding or law breaking)
that emergency warnings cannot be trusted.
United States v. Giraldo, 743 F. Supp. 152, 154 (E.D.N.Y. 1990)
(quoted in Montes-Reyes, 547 F. Supp. 2d at 288 n.10)13; see also
12 In United States v. Wei Seng Phua, the court addressed
circumstances that it acknowledged did not rise to the level of
exigent because the agents "did not lie about an emergency or life-
threatening situation." 100 F. Supp. 3d 1040, 1051 (D. Nev. 2015).
The agents there had cut off internet service to a hotel room and
then posed as repairmen so they could search for evidence of an
illegal sports betting operation. Id. at 1045. Nonetheless, the
court found that the consent given was invalid. Noting the
widespread use of cable, telephone, and internet services, the
court concluded that "policy concerns also weigh against allowing
the government to use a ruse of this type." Id. at 1052. It
observed that "[m]ost reasonable people would invite a third party
repair person into their home if they were led to believe it was
necessary to fix a problem with those services." Id. Wei Seng
Phua also differs from the cases described above, of course,
because the government agents disguised their identities.
13 In Giraldo, the agents were disguised as gas company
employees.
- 25 -
Krause, 206 S.W.3d at 926 (stating that, if the court sanctioned
ruse of false report of young girl's rape, "citizens would be
discouraged from 'aiding to the utmost of their ability in the
apprehension of criminals' since they would have no way of knowing
whether their assistance was being called upon for the public good
or for the purpose of incriminating them" (quoting Schneckloth,
412 U.S. at 243)). This exigent circumstances extension of "the
Bumper coercion principle" is widely recognized. Laurent
Sacharoff, Trespass and Deception, 2015 B.Y.U. L. Rev. 359, 381-
82 (discussing the "line of cases" in which "police lie in such a
way that the resident feels no choice but to allow the search");
see also 4 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment § 8.2(n) (5th ed. 2017) (noting that "[t]he
critical fact in Jefferson [the gas leak ruse] . . . was that the
police in effect deprived the defendant of a free choice in
deciding whether to surrender his privacy, for they made it falsely
appear that a failure to permit entry might result in injury to
persons and property"); Montes-Reyes, 547 F. Supp. 2d at 287-88(noting "universal[] agree[ment]" that consent is invalid when
officers give "the impression that . . . consent cannot be lawfully
withheld," and noting cases finding involuntariness when officers
invoke "dire or otherwise exigent circumstances" to suggest that
"consent to search was required to prevent a[n] impending
calamity").
- 26 -
Thus, to sum up, while the fact-specific nature of the
voluntariness inquiry makes it difficult to draw many bright lines
"within this murky area of law concerning consents [to search]
obtained by deception as to purpose," 4 Search & Seizure, supra,
§ 8.2(n), courts have uniformly recognized that the Fourth
Amendment may be violated when consent is obtained through a law
enforcement officer's false claim of authority or lies conveying
an exigent need for the search. In such instances, the deception
may be sufficient on its own to vitiate the voluntariness of the
resulting "consent." See Bumper, 391 U.S. at 548-49 (stating that
the government's burden of proving that consent was "freely and
voluntarily given" "cannot be discharged by showing no more than
acquiescence to a claim of lawful authority"); see also 4 Search
& Seizure, supra, § 8.2(a) (noting that "[o]ne factor very likely
to produce a finding of no consent under the Schneckloth
voluntariness test is an express or implied false claim by the
police that they can immediately proceed to make the search in any
event" (footnotes omitted)); 2 Wayne R. LaFave et al., Criminal
Procedure § 3.10(c) (4th ed. 2017) (observing that consent obtained
by means of "extreme" misrepresentations that allow no meaningful
option to refuse "should not be considered valid"). Indeed, the
government in this case recognizes these two categories of cases
in which the deception is incompatible with consent. See
Appellee's Br. at 15, 16 (recognizing (1) inherent coercion when
- 27 -
officer falsely asserts that suspect has no right to refuse the
search and that (2) "an officer may not use a ruse that, if it
were true, would give the suspect no real choice but to consent").
3. The Challenged Search
Against the backdrop of the law described above, and
mindful of "the demanding scrutiny required by the Schneckloth
court" in assessing consent, United States v. Twomey, 884 F.2d 46,
51 (1st Cir. 1989), we have little difficulty concluding that the
entry and search as alleged in Pagán-González's complaint violated
the Fourth Amendment.14 Roughly ten FBI agents appeared at
appellant's door with the alarming news that computers in
Washington, D.C. -- the heart of the country's political and
military operations15 -- were receiving signals or viruses from a
computer at appellant's location. If the report of a virus
infecting technology in the nation's capital was not itself enough
to convey an urgent need to address a pressing threat, the show of
14
The voluntariness of appellant's consent is, of course, a
fact-based inquiry properly conducted by the district court in the
first instance. See, e.g., Vanvliet, 542 F.3d at 264.
Accordingly, our discussion addresses only the viability of the
Fourth Amendment claim as alleged -- i.e., whether the facts of
the search as depicted in the complaint show a Fourth Amendment
violation and, if so, whether the defendants are entitled to
qualified immunity.
15As plaintiffs noted in their opposition to defendants'
motion to dismiss, the agents' statement about viruses affecting
computers in "Washington" was an "obvious reference to Government
computers." Pagán-González v. Moreno, Civ. No. 3:14-01899 (GAG),
Dkt. No. 25, at 20 (filed Nov. 2, 2015).
- 28 -
force by the federal agents elevated the seriousness of the
situation and communicated that the problematic computer posed a
substantial threat -- perhaps even to the nation's security.
To be sure, the fabricated emergency was not one that
presented an immediate threat to the personal safety of Pagán-
González, his parents, or any particular individual -- as would a
gas leak or a bomb. See supra Section II.B.2.ii. However, we
reject the government's suggestion that a finding of coercion based
on fabricated exigent circumstances is limited to lies about an
imminent physical danger or "a time-critical investigation
involving the well-being of a vulnerable person." There is nothing
fanciful about the havoc that could be wreaked by a computer attack
on the federal government. By late 2013, when the conduct at
issue here occurred, cyber security was a major concern within the
FBI itself, and the serious threat posed by cyberattacks also was
public knowledge. In March 2012, for example, the FBI's then-top
official on cybercrime stated that terrorist groups were
"increasingly . . . seeking to use the network to challenge the
United States by looking at critical infrastructure to disrupt or
harm the viability of our way of life." FBI, Interview with Shawn
Henry, https://www.fbi.gov/news/stories/the-cyber-threat (March
27, 2012). An executive order issued by the White House in
February 2013 likewise warned that "[t]he cyber threat to critical
infrastructure continues to grow and represents one of the most
- 29 -
serious national security challenges we must confront." Exec.
Order No. 13636, Improving Critical Infrastructure Cybersecurity,
78 Fed. Reg. 11,739 (Feb. 12, 2013), 2013 WL 596302. Public news
accounts included a New York Times story in March 2013 reporting
that the nation's top intelligence official "suggested that such
attacks now pose the most dangerous immediate threat to the United
States, even more pressing than an attack by global terrorist
networks." Mark Mazzetti & David E. Sanger, "Security Leader Says
U.S. Would Retaliate Against Cyberattacks," NY Times (Mar. 12,
2013), https://www.nytimes.com/2013/03/13/us/intelligence-
official-warns-congress-that-cyberattacks-pose-threat-to-
us.html.
In addition, the severity of the purported threat in
this instance was made plain by the number of agents dispatched to
address it. Both of these factors -- the claimed threat and the
significant show of force -- are consequential in assessing the
voluntariness of Pagán-González's consent to enter and search.
See 4 Search & Seizure, supra, § 8.2(b) ("It is significant
. . . that consent has been obtained while the consenting party
was confronted by many police officers."); 2 Criminal Procedure,
supra, § 3.10(c) (stating that consent "should not be considered
valid" when the fabricated scenario is "so extreme" that the
individual cannot fairly assess "the need to surrender his
privacy").
- 30 -
Nor do other factors diminish the coerciveness of these
aspects of the encounter. Pagán-González's education and family
support might have enabled him to resist some types of official
deception, cf., e.g., Parson, 599 F. Supp. 2d at 607 (noting, inter
alia, that target of identity theft ruse was a 65-year-old with
medical issues, including limited ability to see, and was living
alone on a low fixed income), but not the sort of fabricated
emergency created by the officers in this case. This was not a
situation in which government agents were merely offering help to
a private citizen. Unlike in Spivey, where the officers were
responding to the defendants' request for help, or Parson, where
the officers were purporting to protect the defendant from identity
theft, the agents here relied on the predictable acquiescence of
citizens to assist law enforcement when pressed to do so -- and in
a situation where it reasonably could be inferred that national
interests were at stake. See, e.g., Krause, 206 S.W.3d at 927
("What distinguishes this case most, perhaps, from the bulk of
other ruse cases is the fact that [the officer] exploited a
citizen's civic desire to assist police in their official duties
for the express purpose of incriminating that citizen.").
In short, the totality of the circumstances as alleged
point strongly to a situation involving "an unwitting, trusting
beguilement," Spivey, 861 F.3d at 1216, in which Pagán-
González -- pressured by the urgency of the threat posed by the
- 31 -
ruse and intimidated by the agents' en masse arrival -- felt he
had no choice but to allow the agents access to his home and
computer. Viewing the allegations in the complaint favorably to
the plaintiff, the government has not met its burden to prove
voluntariness. See Schneckloth, 412 U.S. at 222; Vázquez, 724
F.3d at 18. Absent valid consent, the warrantless entry to Pagán-
González's home, and the search and seizure of his computer,
violated the Fourth Amendment.
4. Qualified Immunity
Having concluded that the search as alleged violated the
Constitution, we turn to the second prong of the qualified immunity
inquiry: whether the unlawfulness of the agents' conduct was
clearly established at the time they acted. See, e.g., Wesby, 138
S. Ct. at 589. In assessing the clarity of the law, we look to
"'controlling authority' or a 'consensus of cases of persuasive
authority' sufficient to signal to a reasonable officer that
particular conduct would violate a constitutional right." Morse
v. Cloutier, 869 F.3d 16, 23 (1st Cir. 2017) (quoting Wilson v.
Layne, 526 U.S. 603, 617 (1999)). A legal principle can be
"clearly established" without factually identical precedent,
although the existing case law must have placed the specific
constitutional or statutory question "beyond debate." Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011)). Put another way, the law must
- 32 -
have been sufficiently clear that "any reasonable official in the
defendant's position would have known that the challenged conduct
is illegal 'in the particular circumstances that he or she faced.'"
Rivera-Corraliza v. Morales, 794 F.3d 208, 214-15 (1st Cir. 2015)
(quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). Such
precision ensures that government officials are "penalize[d]
. . . for violating 'bright lines,' [but] not for making 'bad
guesses in gray areas.'" Id. at 215 (quoting Maciariello v. Sumner,
973 F.2d 295, 298 (4th Cir. 1992)).
The government argues that the defendants in this case
are entitled to qualified immunity because there is no consensus
on "what constitutes permissible deception in enforcing the
criminal law." Appellee's Br. at 23 (quoting 4 Search & Seizure,
supra, § 8.2(n)). Pointing out that the plaintiffs themselves
have conceded that "there is no Supreme Court or First Circuit
case forbidding agents from using a ruse," the government goes on
to characterize this case as one in which "known officers
misrepresent[ed] their investigative purpose and claim[ed] to be
investigating one crime when they are really investigating
another." Id. at 22. "[E]ven if some such ruses may be out of
bounds," the government states, law enforcement officers cannot be
expected to "identify[] the proscribed variety in advance." Id. at
23.
But the question on which qualified immunity turns in
- 33 -
this case is not whether government agents ever may use a ruse to
obtain consent for a warrantless search. Under current law, they
clearly may. Hence, plaintiffs' "concession" that ruses have never
been prohibited by the Supreme Court or our court is irrelevant to
our inquiry. The government likewise misses the mark in pressing
the lack of clarity on the lawfulness of ruses in which officers
obtain consent by misrepresenting the crime they are
investigating. Importantly, the deception that prompted Pagán-
González's consent was not simply a lie about the purpose of the
agents' search, but it involved fabrication of an emergency. In
other words, the facts as alleged implicate the narrow line of
cases described above in Section II.B.2.ii. See Mullenix, 136 S.
Ct. at 308 (observing that the clearly established "inquiry 'must
be undertaken in light of the specific context of the case, not as
a broad general proposition'" (quoting Brosseau v. Haugen, 543
U.S. 194, 198 (2004) (per curiam) (quoting Saucier v. Katz, 533
U.S. 194, 201 (2001))). The contrast with the facts underlying
the Eleventh Circuit's decision in Spivey, where the majority found
valid consent, is illustrative of this distinction. See 861 F.3d
at 1210-11. There, the officers purported to be investigating
burglaries at the request of the homeowners -- a scenario far
different from the fabricated emergency precedent.
Hence, the second-prong question we must address is
whether the "robust 'consensus of cases'" on fabricated exigent
- 34 -
circumstances put the defendants on notice of the
unconstitutionality of their particular ruse. al-Kidd, 563 U.S.
at 742 (quoting Wilson, 526 U.S. at 617); see also Wesby, 138 S.
Ct. at 590; Rivera-Corraliza, 794 F.3d at 214-15. Even more
specifically, we must consider whether a reasonable law
enforcement officer would have understood that the false report of
a virus threatening computers in Washington, D.C., conveyed to
Pagán-González at his home by a force of ten federal agents
identified as such, was materially equivalent to the ruses in the
fabricated emergency precedent and thus invalidated his consent to
search. See generally Mullenix, 136 S. Ct. at 308 (emphasizing
that "[t]he dispositive question is 'whether the violative nature
of particular conduct is clearly established'" (quoting al-Kidd,
563 U.S. at 742) (emphasis added in Mullenix)).
Essentially for the reasons leading us to conclude that
Pagán-González's complaint states a claim for an unlawful search
under the Fourth Amendment, we also hold that the virus ruse falls
squarely within the "body of relevant case law" in which consent
premised on a fabricated emergency was found invalid. Wesby, 138
S. Ct. at 590 (quoting Brosseau, 543 U.S. at 199); see also City
of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503-04 (2019) (per
curiam). The clear and primary rationale of this line of precedent
is that the consenting individual had no real option to deny access
to his home or property because the threat depicted by law
- 35 -
enforcement agents was so imminent and consequential that only
immediate access could prevent severe harm. In the "explosion"
cases -- involving lies about bombs or a gas leak -- officers used
the threat of personal harm and destruction of the individual's
residence. See Harrison, 639 F.3d at 1276 (agents falsely reported
receiving an anonymous phone call reporting bombs in the
apartment); Giraldo, 743 F. Supp. at 153 (agents falsely reported
possible gas leak); Jefferson, 350 N.Y.S.2d at 4 (officers falsely
stated they were investigating a gas leak). In the cases involving
young girls, the need to find a missing child or the accusation of
a rape likewise presented scenarios where time was of the essence.
See Montes-Reyes, 547 F. Supp. 2d at 291 (observing that "the
'missing girl' ruse . . . created a false sense of exigent
circumstances similar to that raised in a 'gas leak' scenario");
Krause, 206 S.W.3d at 926 (involving the fabricated need to search
based on the "unnerving news [that] a young girl had just been
raped"); cf. Zamora, 940 P.2d at 943 (noting, in finding consent
valid where officers seeking perpetrator of thirteen-year-old's
rape misrepresented their purpose as investigating a domestic
dispute, that "[t]he police did not feign an emergency").
No reasonable law enforcement officer could fail to
understand the similar compulsion that is inherent in the lie used
in this case. See Wesby, 138 S. Ct. at 590 (noting that, to meet
the qualified immunity standard, "there does not have to be 'a
- 36 -
case directly on point,'" but it is necessary to "identify a case
where an officer acting under similar circumstances . . . was held
to have violated the Fourth Amendment" (quoting al-Kidd, 563 U.S.
at 741; White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)).
Indeed, the potential impact of the implied cyberattack carried
out in part via Pagán-González's computer on the nation's capital
was broader than the harms presented in the cases described above
-- implicating national security -- and, as we have noted, the
threat posed by such an attack was a well-known phenomenon by 2013.
See supra Section II.B.3.
Moreover, the precedent further makes plain that
surrounding conditions can contribute to the coerciveness of the
encounter. In Krause, for example, the court noted the "alarming"
timing of the confrontation -- "[a] knock on the door at 4:00 a.m.
by uniformed police officers" -- and the target's additional
vulnerability because of the "heinous and shameful accusation"
that someone in the residence had raped a young girl. 206 S.W.3d
at 926. Here, the severity of the threat was clearly communicated
to Pagán-González by the arrival on his doorstep of ten federal
agents.
Accordingly, every reasonable officer would have
understood that the ruse used here, carried out in a manner that
signified an emergency, would leave an individual with effectively
no choice but to allow law enforcement officers inside his home so
- 37 -
they could attempt to alleviate the grave threat. And, in turn,
a reasonable officer would have known that thus denying Pagán-
González a "free and unconstrained choice" to forgo the
constitutional protection of a warrant was a violation of his
Fourth Amendment rights. Schneckloth, 412 U.S. at 225. Indeed,
as noted above, the government itself acknowledges the clarity of
the rule that "an officer may not use a ruse that, if it were true,
would give the suspect no real choice but to consent." That lack
of options is the necessary inference from the facts alleged in
Pagán-González's complaint. Defendants are therefore not entitled
to qualified immunity on appellant's search-based Fourth Amendment
claim.
III. Malicious Prosecution
Pagán-González argues that he also has a viable Fourth
Amendment claim for malicious prosecution because the defendants
relied solely on the evidence obtained in the unlawful search of
his computer in arresting and charging him. As the district court
noted, to succeed on a malicious prosecution claim, our case law
states that a plaintiff must "establish that: 'the defendant (1)
caused (2) a seizure of the plaintiff pursuant to legal process
unsupported by probable cause, and (3) criminal proceedings
terminated in plaintiff's favor.'" Hernandez-Cuevas v. Taylor,
723 F.3d 91, 101 (1st Cir. 2013) (quoting Evans v. Chalmers, 703
F.3d 636, 647 (4th Cir. 2012)). Pagán-González contends that his
- 38 -
claim meets each of these requirements because, inter alia, the
government voluntarily dismissed the criminal proceedings against
him (thus, in his view, terminating the prosecution in his favor),
and, excluding the unlawfully obtained evidence, his arrest and
prosecution were unsupported by probable cause.
The government counters that Pagán-González fails on
multiple grounds to state a constitutional claim of malicious
prosecution. First and foremost, it challenges Pagán-González's
assertion that evidence obtained from an unlawful search may not
be used to support a finding of probable cause for arrest,
detention, and prosecution. Citing published decisions from other
circuits and unpublished decisions of our own court, the government
points out that the exclusionary rule has been held to apply only
in criminal proceedings. See, e.g., Lingo v. City of Salem, 832
F.3d 953, 960 (9th Cir. 2016) (joining other circuits in "rejecting
[§ 1983 plaintiff]'s suggestion that probable cause to arrest may
be supported only by information that was obtained in accordance
with the Fourth Amendment"); Townes v. City of New York, 176 F.3d
138, 148 (2d Cir. 1999) (holding that "[v]ictims of unreasonable
searches or seizures may recover damages directly related to the
invasion of their privacy . . . [,] but such victims cannot be
compensated for injuries that result from the discovery of
incriminating evidence and consequent criminal prosecution"); see
also id. at 149 ("The lack of probable cause to stop and search
- 39 -
does not vitiate the probable cause to arrest, because (among other
reasons) the fruit of the poisonous tree doctrine is not available
to assist a § 1983 claimant."); Machado v. Weare Police Dep't, 494
Fed. App'x 102, 106 (1st Cir. 2012) (per curiam) (noting that
evidence arguably seized in violation of the Fourth Amendment "is
not subject to the exclusionary rule" in civil proceedings, "and
amply provides probable cause to justify [plaintiff's] arrest").
The widespread view that probable cause to arrest or
prosecute may be established in civil proceedings with unlawfully
seized evidence means that, regardless of our view on the merits
of Pagán-González's malicious prosecution claim, the defendants
are entitled to qualified immunity on that claim. Put simply, no
clearly established law barred the defendants from using evidence
obtained in the unlawful search to support probable cause for the
criminal charges brought against Pagán-González.
In so concluding, we do not reach the first question of
the qualified immunity analysis, i.e., whether Pagán-González
might in fact have a viable Fourth Amendment claim stemming from
his arrest and pre-trial detention. Pagán-González fails to
develop fully an argument that he has satisfied the unsupported-
by-probable-cause requirement stated in Hernandez-Cuevas
notwithstanding the "real," but unlawfully obtained, evidence of
his criminal activity the officers submitted to the magistrate
judge. Nor does he suggest an alternative analysis for considering
- 40 -
his unlawful detention claim under the Fourth Amendment, such as
the forceful theory of relief described by our colleague in his
thoughtful concurrence. See generally Manuel v. City of Joliet,
Ill., 137 S. Ct. 911, 919 (2017) (noting that, where a "judge's
order holding [arrestee] for trial . . . lacked any proper basis,"
the "ensuing pretrial detention, no less than [the] original
arrest, violated [arrestee's] Fourth Amendment rights"); see also
id. at 926 (Alito, J., dissenting) (stating that "malicious
prosecution is a strikingly inapt 'tort analog[y],' Wilson [v.
Garcia], 471 U.S. [261], 277 [(1985)] for Fourth Amendment
violations" (alteration in original)).
Accordingly, the district court properly dismissed the
malicious prosecution claim on the ground that defendants are
entitled to qualified immunity.
IV. Conclusion
For the reasons given above, we vacate the dismissal of
appellants' search-based Fourth Amendment claim. In remanding for
further proceedings on that claim, we leave it to the district
court to address both defendants' contention that the complaint
fails to adequately allege Agent Bonilla's responsibility for the
search and plaintiffs' related request for discovery. We affirm
the dismissal of the malicious prosecution claim based on qualified
immunity.
Vacated in part, affirmed in part, and remanded for further
- 41 -
proceedings consistent with this opinion. Two-thirds costs to
appellants.
-Concurring Opinion Follows-
- 42 -
BARRON, Circuit Judge, concurring. I fully agree with
the analysis that the majority sets forth to explain why David
Pagán-González ("Pagán") states a viable Fourth Amendment claim
with respect to the allegedly unconstitutional, warrantless search
for which he seeks damages. I do so notwithstanding the
defendants' assertion of qualified immunity.
I also agree with the majority that Pagán has failed to
provide us with a basis for overturning the District Court's order
dismissing what he styles as his malicious prosecution claim. In
that claim, he seeks damages for the pre-trial detention that he
endured and that he contends violated the Fourth Amendment's
prohibition against unreasonable seizures. I agree with the
majority that Pagán fails to show, with respect to this claim,
that he has alleged a violation of clearly established law, and
thus I agree that this claim must be dismissed because it cannot
survive the second step of the qualified immunity inquiry.
The choice to resolve a constitutional tort claim with
reference only to the second step of the qualified immunity
inquiry -- as we do here with respect to Pagán's claim concerning
his detention -- is often a sensible one. There is a risk, however,
that such a choice will unduly stunt the development of the law.
See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (explaining that
first deciding whether there has been a constitutional violation
often "promotes the development of constitutional precedent").
- 43 -
Thus, in what follows, I explain why I am of the view that -- absent
qualified immunity's obscuring screen -- Pagán has stated a viable
claim for damages under the Fourth Amendment with respect to his
pre-trial detention.
I.
Starting on December 12, 2013, Pagán was held in pre-
trial detention for five days solely based on an arrest warrant
that federal law enforcement agents had procured from a federal
magistrate judge after they had filed a criminal complaint against
Pagán. See Fed. R. Crim. P. 4(a).16 I focus solely on this period
of Pagán's pre-trial detention in assessing his detention-based
claim for damages. I do so because Pagán's complaint, fairly read,
plausibly alleges the following.
At least one of the defendants deliberately or
recklessly made false statements in an affidavit attached to the
criminal complaint. Those statements misleadingly suggested to
the magistrate judge that law enforcement had used
constitutionally legitimate means to acquire the sole evidence
that formed the basis for the magistrate judge's finding, in
16
At the end of this five-day period, there was a preliminary
hearing to determine whether there was "probable cause to believe
an offense ha[d] been committed and that the defendant committed
it." Fed. R. Crim. P. 5.1(e). Pagán does not allege in his
complaint what evidence was put forward at this hearing.
Accordingly, he has not met his burden to show that his pre-trial
detention that ensued in the wake of that hearing violated his
constitutional right to be free from unreasonable seizures.
- 44 -
issuing that arrest warrant, of "probable cause to believe that an
offense ha[d] been committed and that [Pagán] committed it." Fed.
R. Crim. P. 5.1(e). That evidence consisted of a computer of
Pagán's that contained child pornography.
Consider in this regard that Pagán alleges in his
complaint that one of the agents who participated in his seizure
stated in the affidavit that she attached to the application for
the criminal complaint that, "on October 23, 2013, Agents obtained
consent to examine two computers," including his own. Consider as
well that Pagán also alleges in his complaint that this same agent
made that conclusory representation concerning the consensual
nature of the examination of the computers, even though she "knew
Defendants lied to [Pagán] to secure and obtain the evidence
referred to in her Affidavit." Consider, finally, that Pagán's
complaint notes that this agent stated in the affidavit attached
to the criminal complaint that she "personally participated in
this investigation leading to the information contained in this
affidavit either through personal investigation or through
discussions with other law enforcement personnel."
These allegations are plausible, moreover, in light of
our holdings regarding the unconstitutional nature of the search
that produced the computer. Recall in this regard that we find
that "[n]o reasonable law enforcement agent could fail to
understand the . . . compulsion that is inherent in the lie used
- 45 -
in this case" to obtain the evidence -- namely, the computer
containing the child pornography -- that formed the basis for the
application for the criminal complaint that led to Pagán's
detention pre-trial. Panel Op. 37. Recall, too, that we hold
that "any reasonable officer would have known that denying Pagán
a 'free and unconstrained choice' to forgo the constitutional
protection of a warrant was a violation of his Fourth Amendment
rights." Panel Op. 38 (citing Schneckloth v. Bustamonte, 412 U.S.
218, 225 (1973)).
In sum, Pagán has clearly alleged that at least one of
the agents involved in effecting his detention deliberately or
recklessly misled the magistrate judge into thinking that the sole
evidence of probable cause -- the computer -- had been acquired
through a constitutionally compliant consensual transfer. But,
Pagán has plausibly alleged, that agent was in fact aware that
this evidence had been acquired through a clearly unconstitutional
coercive ruse.
The consequence of these allegations is that Pagán's
detention-based claim brings to the fore at the first step of the
qualified immunity inquiry an important legal question. We must
decide, at this first step, whether these allegations about this
agent's trickery in securing the arrest warrant describe a
constitutional violation, such that Pagán may recover damages for
his pre-trial detention. We must decide whether those allegations
- 46 -
state such a violation, moreover, notwithstanding that the
magistrate judge relied on real evidence of criminal activity to
make the probable cause finding that served as the predicate for
the issuance of the arrest warrant that resulted in Pagán's seizure
and notwithstanding that this real evidence was in fact strong
enough to support that probable cause finding.
In my view, these allegations do suffice to state such
a violation. To explain why, though, I need to wend my way through
an unfortunately complex doctrinal thicket. Only then can I
adequately explain why, on the one hand, Pagán fails to show that
he has alleged a violation of clearly established law, but, on the
other, little logic supports the precedential obstacles that
potentially stand in the way of his doing so.
II.
I begin by winding the clock back more than two decades.
That was when the Supreme Court decided Albright v. Oliver, 510
U.S. 266 (1994), which concerned the constitutional tort of
malicious prosecution. I then consider the developments that have
transpired in the years since Albright that bear on Pagán's case.
A.
Up until Albright, many lower courts had permitted
plaintiffs to recover damages in § 1983 or Bivens actions against
law enforcement for the deleterious effects of a baseless criminal
prosecution. See Torres v. Superintendent of Police of P.R., 893
- 47 -
F.2d 404, 408 (1st Cir. 1990) (collecting cases). Those effects
included, but were not limited to, the harm that the plaintiffs
had suffered in consequence of their pre-trial detentions. See,
e.g., Raysor v. Port Auth. of N.Y. & N.J., 768 F.2d 34, 39 (2d
Cir. 1985) (including "loss of time," "physical discomfort or
inconvenience," "mental suffering," and "humiliation" as
compensable harms in a malicious prosecution claim) (quoting W.
Prosser, Handbook of the Law of Torts 43 (4th ed. 1971)).
Such damages actions were conceived of as ones that
sought remedies for violations of an individual's substantive due
process rights. See Albright, 510 U.S. at 271. Those actions
were not conceived of as ones that sought remedies only for
violations of the plaintiffs' Fourth Amendment right to be free
from an unreasonable seizure. See id. In fact, the constitutional
claims for malicious prosecution that were pursued in these cases
were premised on the notion that they could be brought even if the
defendants had never been seized at all. See id. at 295-96(Stevens, J., dissenting). The seizures were thought to be
relevant, in other words, merely to the plaintiffs' showings of
the damages that flowed from the constitutional violations that
inhered in the baseless prosecutions, much as the reputational
harms that could befall plaintiffs from the fact of such baseless
prosecutions were thought to be relevant to such showings of
damages as well. Id.; see also Raysor, 768 F.2d at 39.
- 48 -
The courts that permitted such suits to go forward often
drew the elements for what they referred to as the constitutional
tort of malicious prosecution from the common law tort of malicious
prosecution. See Albright, 510 U.S. at 296-97, 297 n.10 (Stevens,
J., dissenting) (citing W. Keeton, et al., Prosser and Keeton on
Law of Torts § 119 (1984)); see also, e.g., Goodwin v. Metts, 973
F.2d 378, 383 (4th Cir. 1992) ("[M]alicious prosecution in
violation of section 1983 is [common law] malicious prosecution
resulting in a constitutional deprivation."); Ayala-Martínez v.
Anglero, 982 F.2d 26, 27 (1st Cir. 1992) (listing constitutional
deprivations for purposes of a malicious prosecution claim,
including "life, liberty, property," or the violation of "another
constitutional right"). In line with the elements of that common
law tort, these courts thus routinely required the plaintiffs
bringing the constitutional variant of the tort to show two things.
They had to show both that the prosecutions that they were
challenging had been pursued in the absence of law enforcement
having had any probable cause to pursue them and that the
prosecutions ultimately had been terminated in favor of the
plaintiffs. See Restatement (Second) of Torts § 653 (providing
the elements of common law malicious prosecution).
There was an understandable logic to the strict
requirement that, to make out a constitutional claim for malicious
prosecution, the plaintiff had to show both that there was no real
- 49 -
evidence of probable cause at the outset and that the prosecution
had been terminated in the plaintiff's favor at the close. The
gravamen of the constitutional claim was the utter baselessness of
the prosecution itself -- not any detention that the plaintiff had
been made to endure in the pre-trial period. That seizure -- like
the hit to the plaintiff's reputation -- may have inflicted damage
for which recovery could be sought. But, that damage was not
itself either the source of the constitutional violation or the
basis for the constitutional claim.
Thus, the thinking went, if there were evidence of the
defendant's criminal activity at the outset -- or, if the
defendant's crime could be proven at the close -- then the
constitutional claim for malicious prosecution could not succeed.
There would be no ground for concluding in such a case that the
prosecution had been so baseless as to violate the defendant's
substantive due process rights. By contrast, if the plaintiff
could show that law enforcement had fabricated the evidence of
criminal activity from the get-go and that the prosecution failed
at the end, then the constitutional claim for malicious prosecution
would be viable.
The inclusion of these two elements of the
constitutional tort of malicious prosecution -- the one concerning
probable cause and the one concerning favorable termination -- made
sense for another reason. Insofar as the federal constitutional
- 50 -
guarantee of substantive due process itself barred such baseless
prosecutions, it would have been surprising if that guarantee
imposed such a bar even in cases in which the longstanding common
law variant of the tort did not.
B.
Albright changed the legal landscape quite
significantly. It did not do so by suggesting that -- insofar as
the substantive due process guarantee barred baseless prosecutions
-- the requirement that plaintiffs prove either the no-probable-
cause element or the favorable-termination element was
problematic. See Albright, 510 U.S. at 273-74. Albright instead
asked the logically prior question. Did substantive due process
really render such a start-to-finish baseless prosecution itself
unconstitutional? Albright concluded that, with respect to that
question, the answer was, "No." Id. at 271.
Albright's reasoning reflected a concern about expanding
the scope of substantive due process. See id. at 271-74.
Precisely because the Court relied on that particular line of
logic, however, it provided no reason to think that there was a
similar constitutional problem with permitting plaintiffs to
recover damages for the harm that they suffered in consequence of
their pre-trial detention -- even if it had been effected pursuant
to legal process in the course of a prosecution -- under a Fourth
Amendment-based, unlawful seizure theory. Id. A constitutional
- 51 -
claim of that type raised none of the concerns about expansive
notions of substantive due process that had led the Court in
Albright to reject the constitutional tort of malicious
prosecution more generally.
Albright did not actually go so far as to hold that such
detention-focused, Fourth Amendment-based claims were viable. See
id. at 274-75. But, in the wake of Albright, a majority of the
circuits, including our own in Hernandez-Cuevas v. Taylor, 723
F.3d 91 (1st Cir. 2013), took up the perceived invitation from the
Court to recognize this more limited species of the broader
constitutional tort of malicious prosecution that Albright had
rejected. See Hernandez-Cuevas, 723 F.3d at 99 (collecting cases).
These lower appellate courts held that plaintiffs could
bring what these courts continued to refer to as a "malicious
prosecution" claim under the Constitution -- and thus, under § 1983
or Bivens -- so long as that claim was based on the Fourth Amendment
and thus so long as that claim targeted an actual seizure of the
plaintiff. Id. (recognizing a Fourth Amendment claim and
collecting cases from other circuits doing the same). These courts
thus shifted the focus away from the question of whether the
prosecution itself was so baseless that it offended substantive
due process to the question of whether the detention that resulted
from the prosecution violated the Fourth Amendment because it led
to an unconstitutional seizure.
- 52 -
These courts, though, still had to determine what the
elements of this newly conceived Fourth Amendment-based malicious
prosecution constitutional tort claim would be. See id.
(describing circuit split regarding the elements of such a claim).
And, articulating an answer proved to be tricky.
We offered our answer in Hernandez-Cuevas. Id. at
100-01. We characterized the constitutional claim itself -- as
most courts did -- as one for "malicious prosecution[.]" Id. at
101. But, we made clear that the plaintiff would not necessarily
need to prove the elements of the common law variant of that tort
to make such a claim. Id. at 100-01. Instead, we made clear that
it was possible that the constitutional version of the claim (now
understood to be premised on the Fourth Amendment's protection
against unreasonable seizure) might require a different showing.
Id.
Ultimately, and presciently, we held that the elements
of this type of constitutional tort of malicious prosecution were
not dictated by the elements of the common law malicious
prosecution analogue. Id. For that reason, we did not adopt
wholesale the "malice" element that was part of the common law
tort of malicious prosecution. Id. But, we still did appear to
require as elements of the Fourth Amendment-based constitutional
tort the two notable ones from the old pre-Albright substantive
due process-based malicious prosecution claim that I have
- 53 -
described above. We determined that such a constitutional tort
claim required the plaintiff to show the following elements: "the
defendant (1) caused (2) a seizure of the plaintiff pursuant to
legal process unsupported by probable cause, and (3) criminal
proceedings terminated in plaintiff's favor." Id. (citing Evans
v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012)).
Thus, taken literally, Hernandez-Cuevas describes the
elements of this Fourth Amendment-based malicious prosecution
claim in a way that makes the existence of actual (and sufficiently
substantial) evidence that the plaintiff committed the crime fatal
to a Fourth Amendment-based tort claim challenging a pre-trial
detention that has been carried out pursuant to legal process.
See id. Such evidence would appear to make it impossible for the
plaintiff to show that the detention was carried out in the absence
of the requisite probable cause. Hernandez-Cuevas also makes a
favorable termination of the prosecution critical to the
plaintiff's ability to recover for the harm caused by that
detention. Id.C.
This precedential review brings us, then, to the conduct
by law enforcement that Pagán alleges occurred in this case. That
conduct occurred after we decided Hernandez-Cuevas, which is no
doubt why Pagán relies on Hernandez-Cuevas in arguing that he has
stated a claim for damages. But, given our statement of the
- 54 -
necessary elements of the Fourth Amendment-based malicious
prosecution claim in that precedent, I agree with the majority
that Pagán has failed to make the case that he has alleged a
violation of clearly established law.
Pagán's complaint -- unlike the one in Hernandez-Cuevas
itself, 723 F.3d at 95 -- challenges a pre-trial seizure that was
based on a finding of probable cause by a magistrate judge that
was premised on real and substantial (rather than fabricated)
evidence of his criminal activity. To be sure, Pagán does
challenge the lawfulness of the means by which law enforcement
acquired that evidence -- and the misrepresentations that law
enforcement made to the magistrate judge about those means. He
does not assert, though, that the evidence itself was fabricated
by law enforcement, as was alleged to have been the case in
Hernandez-Cuevas, 723 F.3d at 95, or even that the evidence was on
its face so patently weak that it was obviously insufficient to
make out a finding of probable cause.
Nor does Pagán develop any argument as to how,
notwithstanding the existence of real and substantial evidence of
his criminal conduct, his claim is nonetheless one that clearly
satisfies the probable cause element that Hernandez-Cuevas appears
to have established. See id. at 100-01. Nor, moreover, does he
even develop any argument as to why his claim does not need to be
- 55 -
of that kind in order for it to survive the second step of the
qualified immunity inquiry.
Thus, I agree with the majority that -- at least given
the arguments that Pagán makes to us -- Hernandez-Cuevas poses an
insuperable obstacle to his claim going forward. Accordingly, I
join the majority's holding at step two of the qualified immunity
inquiry. Panel Op. 39-41.
There has, however, been yet another change in the
relevant legal landscape, although this one occurred only after
the initiation of Pagán's case. It thus does little to help Pagán
meet the "clearly established law" prong of the qualified immunity
inquiry, at least given the arguments that he makes to us.
Nevertheless, this change does suggest to me that it would be a
mistake to make too much of the obstacle that seemingly stands in
the way of Pagán's claim with respect to similar claims that may
be brought by others. Thus, in the remainder of my analysis, I
explain my reasons for so concluding.
III.
The post-Hernandez-Cuevas legal change that I have in
mind was brought about by the Supreme Court's recent decision in
Manuel v. City of Joliet, Ill., 137 S. Ct. 911 (2017). An
implication that I draw from Manuel is that it does not make sense
to continue to treat a Fourth Amendment-based claim for damages
resulting from an unlawful seizure effected via pre-trial
- 56 -
detention of a criminal defendant as if it were one for "malicious
prosecution." A further implication that I draw from Manuel is
that we are not obliged to borrow the elements from the common
law -- or substantive due process -- tort of malicious prosecution
when considering a Fourth Amendment-based claim that is brought
for damages for the harm caused by such pre-trial detention.
To support the first of these conclusions, I note that
the Supreme Court granted certiorari in Manuel on the question of
"whether an individual's Fourth Amendment right to be free from
unreasonable seizure continues beyond legal process so as to allow
a malicious prosecution claim based upon the Fourth Amendment."
Id. at 923 (Alito, J., dissenting) (emphasis in original). Yet,
the Court held, "Manuel may challenge his pretrial detention on
the ground that it violated the Fourth Amendment," even though it
occurred "after the start of 'legal process[,]'" id. at 914(majority opinion), without ever referring to such a claim as one
for "malicious prosecution[,]" see id. at 914-22.
Moreover, Manuel remanded to the Seventh Circuit to
consider "the elements of, or rules applicable to" Manuel's claim,
without purporting to set forth the elements from the traditional
tort of malicious prosecution or to answer the timeliness question
by applying the special accrual rules from the common law variant
of the malicious prosecution tort. Id. at 922. In fact, even
though Justice Alito in dissent asserted that the elements of
- 57 -
common law malicious prosecution are entirely inconsistent with a
Fourth Amendment claim like Manuel's, id. at 925-26 (Alito, J.,
dissenting), the majority did not attempt to rebut these arguments
at all in permitting the claim to go forward, see id. 912-22(majority opinion).
In addition to the fact that Manuel eschews the
"malicious prosecution" label, it also supports the implication
that I draw from it that courts need to examine claims such as the
one that Pagán brings through the lens of the Fourth Amendment
rather than through the lens of the common law tort of malicious
prosecution. Although Manuel expressly encourages us to "look
first to the common law of torts" to define the elements of a
§ 1983 claim, it explains that those "[c]ommon-law principles are
meant to guide rather than to control the definition of § 1983
claims,17 serving 'more as a source of inspired examples than of
prefabricated components.'" Id. at 920-21 (quoting Hartman v.
Moore, 547 U.S. 250, 258 (2006)). The Court then proceeds to
admonish us to "closely attend to the values and purposes of the
constitutional right at issue" when "applying, selecting among, or
adjusting common law-approaches." Id. at 921.
17We look to the common law for guidance in Bivens cases, as well.
See Hernandez-Cuevas, 723 F.3d at 101 (citing Albright, 510 U.S.
at 277 n.1 (Ginsburg, J., concurring)).
- 58 -
Thus, it is with this fresh guidance from Manuel in mind
that I now consider whether the Fourth Amendment claim that Manuel
recognizes encompasses a claim like Pagán's. For the reasons set
forth below, I conclude that it does. I do so despite the fact
that the evidence that the magistrate judge relied upon to issue
the arrest warrant that permitted Pagán's seizure was both real
and sufficient to establish the requisite probable cause. I do
so, as well, even though the analogous evidence of probable cause
in Manuel allegedly had been fabricated by law enforcement, just
as it allegedly had been fabricated in Hernandez-Cuevas.
A.
As Manuel recognizes, a claim of the kind that Pagán
brings is necessarily predicated on a challenge to whether the
seizure at issue comports with the Fourth Amendment. The focus,
therefore, should be on discerning the elements of the
constitutional tort that logically relate to the constitutional
right -- namely, the Fourth Amendment prohibition against
unreasonable seizures -- on which the tort is grounded. Id. at
920-21.
Such a focus, however, makes it mysterious to me why we
would continue to define the elements of the claim as Hernandez-
Cuevas -- at least at first blush -- presently does. See
Hernandez-Cuevas, 723 F.3d at 100-01. I start with the favorable
termination element, which Hernandez-Cuevas retains from the old,
- 59 -
pre-Albright constitutional tort of malicious prosecution based on
the common law tort. Compare id., with Restatement (Second) of
Torts § 653. I then consider the element concerning probable
cause, which Hernandez-Cuevas retains from the earlier version of
the tort as well.
With respect to making favorable termination an element
of the Fourth Amendment-based tort, such as the one that Pagán
brings, I see little reason to retain that element post-Manuel.
The termination of the prosecution -- even if unfavorable to the
defendant -- cannot render the pre-trial seizure of the defendant
constitutional if that seizure was unlawful from the inception.
No matter how the prosecution ends -- including if it ends in a
conviction -- the defendant still has a right for there to have
been a constitutionally valid basis for the pre-trial detention
that he endured. Thus, the favorable termination element -- an
artifact of the old, no longer viable substantive due process-
based malicious prosecution constitutional tort -- seems to me to
be an anachronism. Accord Manuel, 137 S. Ct. 925-26 (Alito, J.,
dissenting).
I reach the same conclusion with respect to the element
concerning probable cause -- at least if we understand that element
to require a showing that the magistrate judge's finding of
probable cause that grounded the seizure was predicated on evidence
that law enforcement fabricated or that was so patently weak that
- 60 -
it could not plausibly support a probable cause finding. I add
this caveat about whether Hernandez-Cuevas actually meant to
establish a definitive holding about the requirements of the
probable cause element for the following reason. In Hernandez-
Cuevas, the only evidence of probable cause had -- allegedly --
been fabricated by law enforcement. 723 F.3d at 95. Thus, we had
no occasion there to decide -- definitively -- whether the probable
cause requirement that we set forth was intended to require the
plaintiff to show that there was simply no real evidence sufficient
to establish probable cause at all. It was enough to conclude
that the claim could go forward when the plaintiff had made that
showing by virtue of the allegations concerning fabrication.
But, insofar as Hernandez-Cuevas does establish a
probable cause element of a strict kind, I do not see why it is
right to do so given the recent guidance that we have received
from Manuel. Here, too, my concern is that the element is being
defined with reference to the old, now-rejected malicious
prosecution constitutional tort, rather than with reference to the
Fourth Amendment-based tort, which is the only variant of that
tort that remains viable after Manuel.
There is a logic to requiring the prosecution to have
been based on real evidence of a crime at the outset if the
constitutional claim targets the bringing of the prosecution
itself. There is no similar logic, though, to imposing that
- 61 -
requirement if the constitutional claim challenges only the
seizure that occurred in connection with that prosecution.
To see why, we need only follow Manuel's admonition that,
in discerning the elements of this Fourth Amendment-based tort, we
must keep our eye on the underlying constitutional right. Manuel,
137 S. Ct. at 920-21. A consideration of that right, as I shall
next explain, reveals that even real and substantial evidence of
probable cause -- such as is present in Pagán's case -- may be
insufficient to render an arrest warrant that is issued based on
that evidence one that law enforcement may constitutionally rely
upon to carry out the ensuing seizure.
B.
The Fourth Amendment provides that "no Warrants shall
issue but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized." U.S. Const. amend. IV.
Importantly, for present purposes, the Supreme Court has explained
that the Amendment's protection consists of more than the
requirement of probable cause. Rather, the Court has explained,
"[t]he bulwark of Fourth Amendment protection, of course, is the
Warrant Clause, requiring that, absent certain exceptions, police
obtain a warrant from a neutral and disinterested magistrate before
embarking upon a search." Franks v. Delaware, 438 U.S. 154, 164
(1978).
- 62 -
Further, the Court emphasized in Franks that "it is the
magistrate who must determine independently whether there is
probable cause" in a case where a warrant would be required and
thus "it would be an unthinkable imposition upon his authority if
a warrant affidavit, revealed after the fact to contain a
deliberately reckless false statement, were to stand beyond
impeachment." Id. at 165 (emphasis added). And, finally, Franks
applies equally to arrest warrants issued by a magistrate judge
pursuant to a criminal complaint as to search warrants. See Burke
v. Town of Walpole, 405 F.3d 66, 82 (1st Cir. 2005).
Thus, a showing of probable cause is not the only
prerequisite to a lawful seizure of a criminal defendant -- by
reason of his suspected criminal activity -- under the Fourth
Amendment. Rather, per Franks, the probable cause showing is
necessary but not sufficient, because, in many circumstances, a
defendant's seizure may be constitutionally carried out only
pursuant to an arrest warrant issued by a neutral magistrate judge.
Franks, 438 U.S. at 164.
Moreover, in those circumstances in which a warrant is
required, the seizure does not necessarily comply with the Fourth
Amendment simply because law enforcement carried it out pursuant
to such a warrant. Rather, even in that event, the seizure may be
challenged on Fourth Amendment grounds, as Franks shows, too.
- 63 -
To be sure, even a defective arrest warrant -- say, one
resting on evidence too slight to establish probable cause -- may
legitimate the conduct of officers who, in good faith, effect an
arrest pursuant to that defective warrant. The good faith
exception to the warrant requirement ensures this outcome.
United States v. Leon, 468 U.S. 897, 920-23 (1984); see also United
States v. Barnes, 895 F.3d 1194, 1201-02 (9th Cir. 2018) (applying
Leon's good faith exception to an arrest warrant acquired via
criminal complaint). But, there are cases in which law enforcement
may not rely on an arrest warrant in good faith, and those cases
include ones in which "the magistrate . . . in issuing a warrant
was misled by information in an affidavit that the affiant knew
was false or would have known was false except for his reckless
disregard of the truth." Leon, 468 U.S. at 923 (citing Franks,
438 U.S. at 154).
The logic underlying the precedent that limits the good
faith exception is clear enough. An arrest warrant can legitimate
a seizure premised on a warrant that in fact lacks probable cause.
An arrest warrant cannot legitimate a seizure under the Fourth
Amendment if law enforcement precluded the magistrate judge from
performing the neutral gatekeeping role required of it by the
Warrant Clause. In such circumstances, the warrant cannot provide
a good faith basis for law enforcement to think that the seizure
- 64 -
was lawful due to the trick on the magistrate judge that was used
to secure the warrant.
Against this legal background, Hernandez-Cuevas and
Manuel were hardly innovative in permitting Fourth Amendment-based
damages claims to proceed where the plaintiff alleged that his
pre-trial seizure had been carried out pursuant to an arrest
warrant that the magistrate judge issued based on evidence of
probable cause that law enforcement had fabricated. Manuel, 137
S. Ct. at 914-15, 920 n.8; Hernandez-Cuevas, 723 F.3d at 102-03.
In such circumstances, the warrant clearly could not legitimate
the seizure, given the trick that law enforcement had performed on
the magistrate judge that led the magistrate judge to issue the
warrant.
The question for our purposes, though, is not quite so
easily answered as it was in those cases. The trickery in Manuel
and Hernandez-Cuevas led the magistrate judge to issue a warrant
based on evidence of probable cause that simply did not exist and
that law enforcement knew from the outset did not exist. In a
case like Pagán's, by contrast, law enforcement has not tricked
the magistrate judge into believing that there was evidence of
probable cause when there in fact was none. There was such
evidence all along. Rather, law enforcement has -- allegedly --
merely tricked the magistrate judge into believing that the
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evidence of probable cause was constitutionally acquired when law
enforcement knew it was not.
As I read our precedent, however, where officers trick
the magistrate judge about the unlawfully acquired nature of the
evidence that they have put forward to establish probable cause,
the resulting warrant is no less premised on a lie or reckless
half-truth that materially taints the magistrate judge's capacity
to perform the constitutionally prescribed gatekeeping role than
when the deceit concerns the existence of the evidence. Thus, law
enforcement's ability to rely on that warrant in good faith to
justify the seizure may be limited just as it would be in a case
in which the lie or reckless untruth does concern the evidence's
existence.
Specifically, we have explained that a warrant -- even
if predicated on evidence that was itself real -- may not be relied
upon by law enforcement, if it had been secured by deliberate lies
or reckless omissions that misled the magistrate judge into
thinking that critical evidence of probable cause had been acquired
constitutionally or with a good faith belief that it had been.
See United States v. Diehl, 276 F.3d 32, 43 (1st Cir. 2002). We
have done so, presumably, on the understanding that a fully
informed magistrate judge might have exercised its discretion to
decline to issue the warrant had it known that the evidence of
probable cause had been secured only through law enforcement
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conduct that was not constitutional or that was not undertaken in
good faith that it was. In fact, our precedent, like the precedent
of other circuits, makes clear that a magistrate judge may decline
to issue a warrant when the evidence forming the basis for probable
cause is known to have been acquired in such concerning
circumstances. See United States v. Bain, 874 F.3d 1, 21-22 (1st
Cir. 2017) (collecting cases).18 Thus, lies or reckless omissions
that hide facts that would reveal such problematic means of
acquiring such evidence -- like the lies alleged by
Pagán -- interfere with the magistrate judge's constitutional role
as a gatekeeper. See Franks, 438 U.S. at 155-56.
In Bain, for example, we held that a search warrant could
be issued based on unconstitutionally acquired evidence of
probable cause obtained in a prior search if that prior search had
been conducted on a "good faith" belief that it was conducted
constitutionally. Bain, 874 F.3d at 22.19 In doing so, we
18 The only two circuits to take a different approach have adopted
a per se rule precluding a magistrate judge from relying on
unlawfully acquired evidence when evaluating whether there is
probable cause for a warrant to issue. See United States v.
McGough, 412 F.3d 1232, 1239-40 (11th Cir. 2005); United States v.
Wanless, 882 F.2d 1459, 1466-67 (9th Cir. 1989).
19 In that case, without deciding that it was the correct
formulation of the test for "good faith," we applied the Eighth
Circuit's formulation that the prior search must have been "close
enough to the line of validity to make the officers' belief in the
validity of the warrant objectively reasonable." Bain, 874 F.3d
at 22 (quoting United States v. Hopkins, 824 F.3d 726, 733 (8th
Cir. 2016)).
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reaffirmed our reasoning in Diehl. There, we explained that
officers would be barred from relying on a search warrant that a
magistrate judge issued based on evidence acquired from a prior
warrantless search, if the application for the follow-on search
warrant omitted facts that the defendant alleged would have shown
the prior search to have been undertaken not merely unlawfully but
in "such bad faith to preclude a warrant." Diehl, 276 F.3d at 43
(citing United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996)
(barring reliance on a warrant in such circumstances (citing
Franks, 438 U.S. at 155-56))).
Franks itself, I should add, supports the same
conclusion. It concerned misrepresentations by officers about
whether certain statements -- necessary for a finding of probable
cause by the magistrate judge -- had been made to officers in
violation of the defendant's rights under Miranda v. Arizona, 384
U.S. 436 (1966). Franks, 438 U.S. at 156-57. Franks itself, in
other words, precluded law enforcement from relying on a search
warrant that had been secured through misrepresentations to the
magistrate judge, even though the evidence of probable cause on
which the magistrate judge relied in issuing the warrant was real
(though, I suppose, arguably unreliable). Id. And, of course, we
have held Franks to apply equally to the acquisition of arrest
warrants by criminal complaint. See Burke, 40 F.3d at 82.
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Thus, the following would appear to be clear, at least
under our precedent. When law enforcement intentionally or
recklessly makes false statements to a magistrate judge about the
constitutional or good faith means by which law enforcement
obtained the evidence that supplies the basis for finding the
probable cause necessary to justify the warrant that would permit
a pre-trial seizure of a criminal defendant, such lies -- or
reckless omissions -- undermine the magistrate judge's ability to
perform its constitutional role under the Warrant Clause. See
Franks, 438 U.S. at 155-56. Such intentionally false statements
or reckless omissions thus preclude law enforcement officers from
relying in good faith on the arrest warrant that is then issued
(at least when the officers know of the lies or reckless
omissions). And thus, under our precedent, such lies or reckless
omissions prevent that warrant from legitimating the seizure that
is carried out in reliance on it, Leon, 468 U.S. at 923 (citing
Franks, 438 U.S. at 154), notwithstanding that the lies or reckless
falsehoods concerned only the means by which the evidence of
probable cause had been acquired and not the existence of the
evidence itself.
C.
Against this legal backdrop, I do not see why a plaintiff
should be barred from seeking damages for his pre-trial seizure,
simply because he can show that the lies or the reckless omissions
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that law enforcement told the magistrate judge to secure the arrest
warrant concerned only how real evidence had been acquired and not
whether such real evidence existed. The deceit still stripped the
magistrate judge of the ability to perform its constitutionally
prescribed gatekeeping role. The deceit did so by stripping the
magistrate judge of the opportunity to deny law enforcement the
ability to exploit the unconstitutional conduct it used to acquire
the evidence that supplies the sole basis for procuring the warrant
that would permit a defendant to be seized. Under our precedent,
therefore, the seizure would appear to be no less
unconstitutional -- insofar as the warrant is necessary in the
first place -- for having been carried out pursuant to
unconstitutional trickery of that comparatively subtle (but still
egregious) sort. Cf. Manuel, 137 S. Ct. at 918 (noting that the
Fourth Amendment's prohibition on "government officials . . .
detaining a person in the absence of probable cause" may "also
occur when legal process itself goes wrong").
Nor would such a conclusion be unique. There is some
precedent that recognizes that the old "probable cause"
element -- as developed in connection with the pre-Albright
constitutional tort of malicious prosecution -- should not be
construed to require a showing that the finding of probable cause
rested on fake rather than real evidence. For example, in Boyd v.
City of New York, 336 F.3d 72 (2d Cir. 2003), the Second Circuit
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considered a case in which the officers lied repeatedly, both to
the grand jury and at a suppression hearing, about whether key
testimony by the defendant had been given in violation of Miranda.
Boyd, 336 F.3d at 74. There was no contention in Boyd that the
criminal defendant's statements were false, only that officers
knew them to be inadmissible at the eventual trial. Id. Yet,
rather than consider only whether there was real evidence of
probable cause to believe Boyd had committed a crime -- as was the
standard, pre-Albright inquiry -- the Second Circuit expanded the
probable cause inquiry to allow that element to be satisfied even
when there was real evidence of probable cause. Id. at 74 n.7.
Thus, even before Manuel, at least one circuit appeared
to be grappling with the apparent mismatch between the elements of
existing, substantive due process malicious prosecution claims and
the new Fourth Amendment-based claim challenging the seizure
alone. In my view, that circuit was right to be doing so.
Consider a case in which law enforcement bribed the
magistrate judge to rule its way in assessing whether debatable
but real evidence -- say, officer testimony in which credibility
determinations are paramount -- could suffice to permit the
seizure. The victim of that misconduct should not be barred from
seeking recompense for the harm that he has endured from the
resulting detention. There, the evidence of probable cause itself
would not have been fabricated. Nor might it even have been so
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patently weak as to preclude an officer from relying in good faith
on a warrant based on it. Nevertheless, the detainee would still
have been deprived of his Fourth Amendment right to have a neutral
magistrate judge -- rather than an interested executive
actor -- assess whether the detention was justified.20
The situation, it seems to me, is no different if the
magistrate judge was misled into believing that the evidence of
probable cause had been acquired consensually rather than pursuant
to a ruse that the officers knew to be unconstitutionally coercive.
Such deceit -- even if it inheres only in a reckless omission,
rather than a deliberate untruth, and even if it concerns the means
of acquisition rather than the evidence's actual
existence -- prevents the magistrate judge from performing its
constitutionally contemplated role as a neutral adjudicator of
whether detention is warranted. See Franks, 438 U.S. at 165. That
is so, under our precedent, notwithstanding that this deceit
20I note in this regard that, although our review of a District
Court's legal conclusions on a motion to suppress, "including its
conclusion regarding the existence of probable cause, [is] de
novo," United States v. Clark, 685 F.3d 72, 75 (1st Cir. 2012), we
also afford "great deference" to "[a] magistrate's determination
of probable cause[,]" id. at 78. This is especially so where the
probable cause determination rests on factual findings or
credibility determinations. Id. at 75, 78. Thus, such a bribe
would appear to short-circuit the gatekeeping process, at least in
a case in which the probable cause finding would itself depend on
fact finding by the magistrate to which we would otherwise defer.
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concerns only how law enforcement acquired the evidence of probable
cause and not whether the evidence exists.
D.
Allowing claims like Pagán's to proceed would not mean
that constitutional tort suits could be used to attack arrests
based on warrants as a general matter. Leon still shields officers
where they rely on warrants in good faith, except in very limited
circumstances, such as Franks violations in securing the warrant.
Leon, 468 U.S. at 923 (citing Franks, 438 U.S. at 154). But, when
the officers' reliance on that warrant is in bad faith -- such as
when the officer who participates in the seizure is also
responsible for the reckless or deliberate misrepresentations that
led to the warrant's tainted issuance -- I do not see why the
specter of a damages judgment should not be in the offing.
This approach is also entirely consistent with the
prevailing view that the exclusionary rule does not apply to civil
proceedings. See Lingo v. City of Salem, 832 F.3d 953, 960 (9th
Cir. 2016); Townes v. City of New York, 176 F.3d 138, 148 (2d Cir.
1999). Under this approach, the inquiry is not whether the
evidence shows that there was probable cause to believe the
plaintiff had committed a crime. The inquiry is whether law
enforcement precluded the magistrate judge from performing its
constitutionally assigned gatekeeping role through deliberate lies
or reckless omissions about the means used to acquire the evidence
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of probable cause. Thus, as the Fourth Amendment-based tort claim
does not depend on guilt or innocence or on whether the improperly
procured evidence was real or fake, the plaintiff does not need to
exclude the evidence of probable cause to win. The plaintiff needs
only to put forward facts sufficient to show a Franks violation.
In addition, in all § 1983 cases and Bivens actions,
plaintiffs must show some causation between the defendant's
conduct, the constitutional violation, and the plaintiff's injury.
See Martinez v. California, 444 U.S. 277, 285 (1980) (holding that
the language of § 1983 imposes a proximate cause requirement on
claims under that statute); Hernandez-Cuevas, 723 F.3d at 100
(requiring a showing of causation in Bivens actions). As we
explained in Hernandez-Cuevas, "in most cases, the neutral
magistrate judge's determination that probable cause exists for
the individual's arrest is an intervening act that could disrupt
any argument that the defendant officer had caused the unlawful
seizure." Id. at 100 (citing Sanchez v. Pereira-Castillo, 590
F.3d 31, 50 (1st Cir. 2009) ("We employ common law tort principles
when conducting inquiries into causation under § 1983.")). We
noted, too, that this "causation problem" can be overcome only if
it is clear that law enforcement officers were "responsible for
[the plaintiff's] continued, unreasonable pretrial detention,"
including by "fail[ing] to disclose exculpatory evidence" or
"l[ying] to or misle[ading] the prosecutors." Id.
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IV.
For these reasons, I conclude that Pagán has
sufficiently stated a claim for damages under the Fourth
Amendment -- save, that is, for the qualified immunity defense
that bars that claim from surviving here. The lack of clarity in
our precedent or the Supreme Court's as to the elements of such a
claim precludes him from overcoming that defense -- at least given
his arguments to us. I recognize that this caveat concerning
qualified immunity is a rather significant one -- and not only in
Pagán's case. The defense of qualified immunity is usually invoked
in cases like this one, just as it has been invoked here. A
plaintiff who loses at the second step of the qualified immunity
inquiry is no better off than one who loses at the first step.
Still, it is important to address the first step of the
qualified immunity inquiry. That step is certainly relevant in
cases in which the defense of qualified immunity is not properly
invoked -- and, in fact, it was not invoked in either Hernandez-
Cuevas or Manuel. Hernandez-Cuevas, 723 F.3d 97, 97 n.7; see
generally Manuel, 137 S. Ct. at 914-22.
With respect to that step, moreover, it is clear to me
that, in light of Manuel, it is a mistake to attempt to fashion a
half-fish, half-fowl, hybrid malicious prosecution/Fourth
Amendment based tort. I thus do not see how, post-Manuel, we could
continue to justify treating a Fourth Amendment-based claim such
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as Pagán brings here -- targeting, as it does, only the seizure
and not the prosecution -- as a species of the old malicious
prosecution tort. Rather, we must understand that tort for what
it is -- a Fourth Amendment-based challenge to pre-trial detention
that targets law enforcement's efforts to circumvent the warrant
requirement through lies or reckless omissions that conceal from
the magistrate judge facts material to its ability to perform its
constitutionally assigned role.
For that reason, I think it important to lay out this
analysis here. That way, in a subsequent case we will be better
positioned to resolve definitively how Manuel bears on -- and, in
my view, supersedes -- two of the elements of the constitutional
tort that we described in Hernandez-Cuevas: the ones concerning
favorable termination and probable cause. See Hernandez-Cuevas,
723 F.3d at 100-01.
Unless we at some point address step one of the
qualified immunity inquiry in a case involving such a claim, or
otherwise definitively define the elements of this constitutional
tort post-Manuel, we will be at risk of leaving the law unclear in
key respects. In consequence, we will be permitting our pre-
Manuel case law to exert an outsized influence on the types of
remedies that may be available to those who have been the victims
of unlawful law enforcement trickery of the kind that the Fourth
Amendment quite clearly condemns.
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Finally, and relatedly, I would not rule out the
possibility that, even before our court does provide clarity to
the doctrine in this area, a plaintiff might be able to develop an
argument -- which Pagán has not attempted to do here -- as to why
such a claim might be viable even in the face of a qualified
immunity defense. Our Fourth Amendment precedents in Bain and
Diehl clearly establish that law enforcement officers -- per
Franks -- may not rely on warrants in good faith that are the
product of their own reckless half-truths about the
constitutionality (or the officers' good faith belief in the
constitutionality) of the means used to acquire the evidence of
probable cause on which the magistrate judge relied in issuing the
warrant. Nor does Hernandez-Cuevas suggest otherwise. Rather,
Hernandez-Cuevas at most creates doubt about the content of one
element of the constitutional tort suit that may be brought to
recoup damages for the harm caused by the pre-trial detention that
results from such clearly unconstitutional law enforcement
conduct.
Given that qualified immunity is intended to serve a
practical, functional purpose, I am not certain that law
enforcement officers should be immune from damages for engaging in
conduct that, at the time it was undertaken, was clearly
unconstitutional under our precedent, simply because we had not
also as of that time clearly described an element of the
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constitutional tort that may be brought to recover damages for the
harm caused by such conduct. We have no occasion, however, to
consider such a refined question of qualified immunity law here.
I thus leave it for another day.
For present purposes, it is enough to lay out the lines
along which the relevant doctrine may be reconstructed. Doing so
is the first step along the route to ensuring that this body of
doctrine is freed from the lingering influence of the pre-Albright
tort of malicious prosecution and thus may reflect more fully
Manuel's suggestion that we "closely attend to the values and
purposes of the constitutional right at issue" when "applying,
selecting among, or adjusting common law-approaches." Manuel, 137
S. Ct. at 921.
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