Rivera Rodriguez v. Beninato , 469 F.3d 1 ( 2006 )

United States Court of Appeals
For the First Circuit
No. 05-2748
IVETTE RIVERA RODRÍGUEZ, GLENDA NERIS RIVERA,
Plaintiffs, Appellants
v.
GREGORY BENINATO, EDWIN LÓPEZ, MIGUEL FALCÓN,
JOHN DOE 04-CV1322, JANE DOE 04-CV1322,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Boudin, Chief Judge
Lynch, Circuit Judge and
Schwarzer,* Senior District Judge
Javier A. Morales Ramos on brief for appellants.
Fidel A. Sevillano Del Rio, Assistant United States Attorney,
H. S. Garcia, United States Attorney, and Miguel A. Fernandez,
Assistant United States Attorney, on brief for appellees.
November 14, 2006
*
Of the Northern District of California, sitting by
designation.
SCHWARZER, Senior District Judge. Ivette Rivera
Rodríguez and her daughter, Glenda Neris Rivera, appeal the summary
judgment dismissing their Bivens action against Gregory Beninato
(FBI), Edwin López (FBI), and Miguel Falcón (Puerto Rico Police
Department) for alleged violations of their Fourth Amendment rights
in the execution of a search warrant. See Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1971). The district court
held that defendants were entitled to qualified immunity on
plaintiffs’ constitutional claims and dismissed plaintiffs’ related
claims. On appeal plaintiffs raise four contentions of error: the
invalidity of the search warrant; the insufficient showing of
probable cause in the affidavit; the failure of the officers to
show the warrant to Ms. Rodríguez before commencing the search; and
the unconstitutional timing of the execution of the warrant.
Having carefully considered plaintiffs’ arguments, we find no error
in the district court’s disposition and affirm.
FACTS
On May 22, 2003, at approximately 5:50 a.m., FBI and
other government agents searched the home of Ivette Rivera
Rodríguez (Ms. Rodríguez) at Calle Eugenio Maria de Hostos #31 in
connection with a May 19th robbery of an armored car.
Ms. Rodríguez and her daughter, both barefoot and in nightclothes,
were handcuffed and taken outside during the search. In addition
to searching the home, the agents, pursuant to another warrant,
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seized a white 1998 Mitsubishi Mirage Technica (plate number DBW-
680), which had been parked in front of Ms. Rodríguez’s residence.
Gregory Beninato (Beninato), who was present at the time
of the search, prepared and signed the affidavit which supported
the issuance of the warrant to search the Rodríguez home. The
affidavit contained, among other things, information from three
anonymous sources. A magistrate judge reviewed the affidavit and
signed the warrant. The warrant contained no description of the
property to be searched for or seized but referred to the “attached
affidavit.” Ms. Rodríguez requested a copy of the warrant at the
outset of the search but the agents declined to give it to her.
The district court found that the agents gave her the warrant with
an attached list of the items sought following the search.
STANDARD OF REVIEW
Summary judgment may be granted if “there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
We draw all reasonable inferences from the record in the
nonmovant’s favor and may base our decision on any rationale,
regardless of whether the lower court used the same. Cox v.
Hainey, 391 F.3d 25, 29 (1st Cir. 2004).
We review the lower court’s probable cause determination
de novo, with any factual findings reviewed for clear error.
United States v. Zayas-Diaz, 95 F.3d 105, 111 n.6 (1st Cir. 1996).
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If presented with a marginal case, we defer to the issuing
magistrate's determination of probable cause. Illinois v. Gates,
462 U.S. 213, 238 (1983).
DISCUSSION
Plaintiffs contend that the search of the house pursuant
to an invalid warrant issued on an insufficient affidavit violated
their Fourth Amendment rights. The district court held that the
defendant officers were entitled to qualified immunity because
under the circumstances set forth in the affidavit, it was not
unreasonable for them to conclude that one or more of the robbers
might be in the Rodríguez residence and that plaintiffs had failed
to cast any real doubt on the validity of the warrant.
I. QUALIFIED IMMUNITY
The parameters of qualified immunity are well settled and
we need plow no new ground. Qualified immunity protects government
officials performing discretionary functions from liability and the
burdens of litigation. Hainey, 391 F.3d at 29.1 In determining
whether a government official has qualified immunity, this court
conducts a three-part inquiry: “(i) whether the plaintiff's
allegations, if true, establish a constitutional violation; (ii)
1
Ms. Rodríguez brought this suit under Bivens, but for
purposes of a qualified immunity analysis courts treat Bivens
actions and § 1983 actions as being the same. Wilson v. Layne,
526 U.S. 603, 609 (1999). Thus, when conducting the analysis, we
cite cases discussing qualified immunity regardless of the basis
for plaintiff’s claim.
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whether the constitutional right at issue was clearly established
at the time of the putative violation; and (iii) whether a
reasonable officer, situated similarly to the defendant, would have
understood the challenged act or omission to contravene the
discerned constitutional right.” Limone v. Condon, 372 F.3d 39, 44
(1st Cir. 2004). Qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341 (1986). A court should conduct the
analysis in this sequence and at the earliest possible stage in the
case. Hainey, 391 F.3d at 29-30.
II. THE WARRANT
We begin our discussion with the warrant because the
presence of a valid warrant is essential to the lawfulness of the
search (in the absence of exigent circumstances). It was clearly
established law at the time of the search that a warrant must
describe the things to be seized with particularity. The Fourth
Amendment states that “no Warrant 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 (emphasis added); see In re
Lafayette Acad., 610 F.2d 1, 3 (1st Cir. 1979)(holding warrant
invalid for lack of particularity). In United States v. Morris,
977 F.2d 677, 681 (1st Cir. 1993), we stated:
In requiring a particular description of
articles to be seized, the Fourth Amendment
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“‘makes general searches . . . impossible and
prevents the seizure of one thing under a
warrant describing another. As to what is to
be taken, nothing is left to the discretion of
the officer executing the warrant.’” United
States v. Fuccillo, 808 F.2d 173, 175 (1st
Cir. 1987) (quoting Stanford v. Texas,
379 U.S. 476, 485 (1965)). Unfettered
discretion by the executing officer is one of
the principal evils against which the Fourth
Amendment provides protection, and thus
warrants which lack particularity are
prohibited.
The warrant supporting the search of Ms. Rodríguez’s home
contained no description of the property to be seized. In the
space on the form calling for the magistrate to “describe the
person or property” believed to be on the premises to be searched,
the warrant simply restated the description of the premises to be
searched.2 Considering only the face of the warrant, no reasonable
officer could believe it described the items to be seized with
particularity.
2
One residence located at #31 Eugenio Maria de
Hostos Street, Caguas, Puerto Rico, described
as a rust colored two story residence, with a
patio located on the roof. A stairwell is
located on the right side of the structure
which leads up to a small room. A concrete
wall, approximately 6 ft. in height, brown in
color, with square holes, and a black wrought
iron gate, approximately 6 ft. in height are
located at the front of the residence. The
gate slides manually from left to right. Two
doors, white in color, can be distinguished in
the front of the residence. A wall separates
the residence from the street behind the
residence.
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Defendants contend, however, that a warrant that does not
contain a description of the property to be seized may nevertheless
be valid under the Fourth Amendment if it cross-references and is
accompanied by supporting documents which contain the required
description. In Lafayette Academy we said, “‘The traditional rule
is that the generality of a warrant cannot be cured by the
specificity of the affidavit which supports it . . . . Specificity
is required in the warrant itself in order to limit the discretion
of the executing officer as well as to give notice to the party
searched.’” 610 F.2d at 4 (quoting United States v. Johnson,
541 F.2d 1311, 1325 (8th Cir. 1976)). We recognized, however, that
under some circumstances an affidavit may cure deficiencies which
would exist were the warrant to stand alone. We said in United
States v. Klein, 565 F.2d 183, 186 n.3 (1st Cir. 1977), “An
affidavit may be referred to for purposes of providing
particularity if the affidavit accompanies the warrant and the
warrant uses suitable words of reference which incorporate the
affidavit.” See also, Groh v. Ramirez, 540 U.S. 551, 557-58 (2004)
(listing cases from multiple circuits which have allowed warrants
to be construed with reference to an incorporated affidavit).
Here, the warrant stated, “See attached affidavit,”
language which suffices to incorporate the affidavit. See
Massachusetts v. Sheppard, 468 U.S. 981, 990 n.7 (1984). A
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reasonable officer standing in defendants’ shoes could believe the
warrant to be sufficient to authorize the search.3
III. THE AFFIDAVIT
We next consider whether a reasonable officer could have
believed that probable cause existed to search the Rodríguez
residence. Malley, 475 U.S. at 344-45. Probable cause existed if
the “totality of the circumstances” disclosed in the Beninato
affidavit demonstrates “a fair probability that contraband or
evidence of a crime will be found in a particular place.” Gates,
462 U.S. at 238. For purposes of qualified immunity, the test is
whether the unlawfulness of the search would have been apparent to
an objectively reasonable officer standing in defendants’ shoes.
Hainey, 391 F.3d at 31. Qualified immunity will be lost only if
the affidavit is “so lacking in indicia of probable cause as to
render official belief in its existence unreasonable.” Malley,
475 U.S. at 345.
The Beninato affidavit, on the basis of which the warrant
issued, relates the facts of an armored car robbery carried out by
unidentified persons on May 19, 2003. With reference to the search
3
Plaintiffs, who bear the burden of establishing the
invalidity of the search, have not shown that the affidavit did not
accompany the warrant to the search. See Kirkland v. St. Vrain
Valley Sch. Dist. No. Re-1J, 464 F.3d 1182, 1188 (10th Cir. 2006)
(“After a defendant asserts a qualified immunity defense, the
burden shifts to the plaintiff, and the plaintiff must first
establish that the defendant's actions violated a constitutional or
statutory right.”).
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of Ms. Rodríguez’s residence, it contains the following
information:
1. An anonymous source reported that on the morning of
May 19, 2003, the source observed individuals transferring bags
from a minivan in which the robbers had escaped to other vehicles,
including a white Mitsubishi Mirage Technica.
2. Another anonymous source reported on October 2, 2002,
that the two individuals who robbed a bank on October 1, 2002,
drove a white Mitsubishi Mirage Technica, plate DBW-680, and that
one of the individuals lived at Calle Eugenio Maria de Hostos #31
with his mother.
3. In an interview with police, Alfredo Neris Rivera
advised that his mother resides at Eugenio Maria de Hostos.4
4. Witnesses (in addition to anonymous sources) also
placed the white Mitsubishi Mirage Technica, plate DBW-680, at the
scene of three bank robberies during June, July, and October 2002.
5. On May 21, 2003, law enforcement officers located the
white Mitsubishi Mirage Technica, plate DBW-680, “at Calle Eugenio
Maria de Hostos.”
When an affidavit relies on the statements of anonymous
sources, it must provide some information upon which the magistrate
judge may assess the credibility of the sources’ information.
4
The affidavit disclosed that the white Mitsubishi Mirage
Technica was registered to Arodi Rolon Alvarado but did not
disclose that, as the court found, Arodi was Alfredo’s wife.
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United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002). A
nonexhaustive list of factors that a reviewing court will consider
in a probable cause determination from an informant includes:
whether an affidavit supports the probable veracity or basis of
knowledge of persons supplying hearsay information; whether
informant statements are self-authenticating; whether a law
enforcement affiant included a professional assessment of the
probable significance of the facts related by the informant based
on experience or expertise; and, whether some or all of the
informant's factual statements were corroborated wherever
reasonable and practicable. Id.The affidavit relied on three anonymous sources.5 It is
silent with respect to the veracity or basis of knowledge of the
sources, the sources’ reliability, and how the sources obtained the
information. It does not contain a law enforcement officer’s
professional assessment of the probable significance of the facts
related by the informants based on his experience or expertise.
And the informants’ statements were not self-authenticating.
None of the factors, however, is indispensable. Stronger
evidence on one may compensate for a weaker or deficient showing on
another. Zayas-Diaz, 95 F.3d at 111. Here, the affidavit
contained information that provided substantial cross-
5
As the information from the other sources is sufficient, we
need not consider that from a third anonymous source.
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corroboration. Several informants and witnesses known to the
police saw the white Mitsubishi Mirage Technica at the scene of
three 2002 bank robberies and an informant saw it again on the day
of the 2003 armored car robbery receiving bags being unloaded from
the robbers’ van. Two days after the 2003 robbery, police located
the white Mitsubishi Mirage Technica, plate DBW-680, at Calle
Eugenio Maria de Hostos. One informant saw two individuals who
robbed a bank on October 2, 2002, driving a white Mitsubishi Mirage
Technica and advised that one of them lived at Calle Eugenio Maria
de Hostos #31 with his mother. Alfredo Rodríguez told police that
his mother resides at Calle Eugenio Maria de Hostos #31.
Considering the totality of the circumstances, a
reasonable officer could infer that the white Mitsubishi Mirage
Technica was being used in connection with robberies, that one of
the persons implicated in the robberies lived at Calle Eugenio
Maria de Hostos #31 where the car was spotted, and that therefore
contraband might be found at that location.
IV. THE REMAINING ISSUES
Plaintiffs’ remaining contentions are readily disposed
of. Plaintiffs concede that the Constitution does not require the
searching officer to serve the search warrant before commencing the
search. See Groh, 540 U.S. at 562 n.5.
Finally, plaintiffs contend that the search was
unreasonable as a nighttime search in violation of the Fourth
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Amendment and of the 6:00 a.m. to 10:00 p.m. time frame specified
in the warrant.6 The district court did not make a finding of the
time at which the search commenced but it did find that a
commanding officer “ordered the FBI SWAT team to enter the
residence at approximately 5:50 a.m.” Thus, the execution must
have occurred sometime after 5:50 a.m.—close enough to the
6:00 a.m. hour to make any deviation from the warrant de minimis.
See United States v. Twenty-Two Thousand, Two Hundred Eighty Seven
Dollars, 709 F.2d 442, 448-49 (6th Cir. 1983).
CONCLUSION
We conclude that on the record before us, defendants were
entitled to qualified immunity. See Wilson v. Layne, 526 U.S. 603,
609 (1999). The judgment is AFFIRMED.
Affirmed.
6
This was no nighttime search. According to the United States
Naval Observatory, on May 22, 2003, the sun rose at 5:49 a.m. in
San Juan. United States Naval Observatory, Sunrise Calculator,
http://aa.usno.navy.mil/data/docs/RS_OneDay.html.
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