throbber
United States Court of Appeals
`For the First Circuit
`
`No. 00-1652
`
`GABRIEL EDUARDO ABREU-GUZMÁN;
`ROSA LEONOR GUZMÁN-MIESES
`
`Plaintiffs, Appellants,
`
`v.
`
`ALICIA FORD; DRUG ENFORCEMENT ADMINISTRATION; WILLIAM J.
`MITCHELL, JAY STOOTHOFF; STEVE RILEY; WALDO SANTIAGO; FRANCISCO
`J. ALVAREZ; REGINALD CHENEY; IVAN RIOS; RICHARD ESCALERA; ANA
`SUALNIER
`
`Defendants, Appellees.
`
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF PUERTO RICO
`
`[Hon. Daniel R. Dominguez, U.S. District Judge]
`
`Before
`
`Boudin, Stahl and Lynch, Circuit Judges
`
`Bennie Frankie Cerezo, Rosanna T. Cerezo, and Benny Frankie
`Cerezo Law Offices on brief for appellants.
`Guillermo Gil, United States Attorney, Miguel A. Fernández,
`Assistant U.S. Attorney, and Isabel Muñoz-Acosta, Assistant U.S.
`Attorney on brief for appellees.
`
`February 28, 2001
`
`

`
`

`
`LYNCH, Circuit Judge. Gabriel Eduardo Abreu-Guzmán and
`
`his mother, Rosa Leonor Guzmán-Mieses, appeal from the entry of
`
`summary judgment on their claims against several federal law
`
`enforcement agents who arrested Abreu. Abreu was detained pre-
`
`trial for several months. The arrest was largely based on
`
`information from an informant, who had identified Abreu as
`
`"Junior," a participant in a drug conspiracy. The government
`
`later dropped all charges against Abreu.
`
`In this civil rights action, plaintiffs say Abreu's
`
`arrest violated his Fourth Amendment rights and his subsequent
`
`detention was unlawful. They brought claims under Bivens v. Six
`
`Unknown Names of Federal Bureau of Narcotics, 403 U.S. 388
`
`(1971), for alleged constitutional violations, and under the
`
`Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, for
`
`false arrest, false imprisonment, and malicious prosecution. We
`
`affirm judgment in favor of all defendants.
`
`I.
`
`In January 1993, DEA agents Steve Riley, Jay Stoothoff,
`
`and others began investigating a suspected conspiracy to
`
`transport large amounts of cocaine from Puerto Rico to New York.
`
`One of those arrested decided to cooperate. He provided
`
`information to the agents about a co-conspirator known as
`
`"Junior." The informant gave agents a physical description of
`
`-3-
`
`

`
`"Junior" and provided a cellular telephone number belonging to
`
`"Junior." Agent Riley obtained information from the phone
`
`company identifying Gabriel Abreu-Guzmán as the number's
`
`subscriber. Agents Riley and Stoothoff then obtained an old
`
`driver's license photograph of Abreu. The informant selected
`
`that photo out of a photo lineup, saying it was the man he knew
`
`as "Junior," but at a much younger age. Hotel records also
`
`showed that an alleged co-conspirator, Daniel Nuñez, at the time
`
`of the criminal activity, had placed two calls from his hotel
`
`room to Abreu's cell phone number. Phone company records of
`
`Abreu's account confirmed that there was no evidence of
`
`fraudulent claims or cloning of Abreu's cellular phone number.
`
`On the basis of this information, on April 28, 1993,
`
`a federal grand jury returned indictments on drug conspiracy
`
`charges against two named defendants and a John Doe 2, also
`
`known as "Junior." On May 6, a warrant for Abreu's arrest
`
`issued, on the basis he was the "Junior" in the indictment.
`
`Agent Alicia Ford and Special Agent Ana Saulnier set out to
`
`arrest Abreu on May 6, 1993. Agent Ford was provided with the
`
`informant's physical description of "Junior": a black, light-
`
`skinned Hispanic male, approximately six feet to six feet two
`
`inches tall, weighing approximately 175 to 180 pounds, black
`
`hair, clean shaven, 33 to 35 years old, driving a gray 280-Z
`
`-4-
`
`

`
`Nissan. Also, Agent Ford was given the two addresses where
`
`"Junior" might be found. No one was home at either address, so
`
`agents showed Abreu's picture to neighbors and advised them that
`
`the agents were looking for him.
`
`That afternoon, the agents were notified that Abreu was
`
`waiting for them at DEA Headquarters. Agent Ford and Special
`
`Agents Saulnier, Izquierdo, and Reginald Cheney found Abreu and
`
`two women waiting for them in the reception area. Ford placed
`
`Abreu into custody and explained the nature of the charges
`
`against him. Abreu and one of his companions insisted that the
`
`agents were arresting the wrong person.1
`
`Abreu was shown a photocopy of the license photograph
`
`used to identify him with the informant. He acknowledged the
`
`photo was him and stated that it was an old photo. He was
`
`photographed and his description noted him as being Puerto
`
`Rican, black, seventy inches tall, weighing 202 pounds, and 25
`
`years old. Thus, he was shorter, heavier, and younger than the
`
`The district court rejected plaintiffs' claim in their
`1
`Statement of Contested Facts that the agents did not explain the
`nature of the charges or the procedure to Abreu, as plaintiffs
`failed to provide any support for that allegation. Indeed, the
`deposition testimony of plaintiff Rosa Guzmán Mieses
`corroborates that Ford told her that "we're looking for your
`son, we have an accusation from a federal grand jury." Abreu v.
`Ford, 69 F. Supp.2d 274, 278 n.1 (D.P.R. 1999). Moreover,
`defendants proffered two affidavits stating that agents did so
`inform Abreu and Guzmán. Id.
`
`-5-
`
`

`
`description of "Junior." At Abreu's detention hearing on the
`
`same day as his arrest, a magistrate judge ordered Abreu
`
`committed to the Puerto Rico State Penitentiary. Abreu was
`
`released on September 2, 1993, pursuant to several conditions,
`
`including that he wear an electronic monitoring device. On
`
`February 16, 1994, the United States moved for voluntary
`
`dismissal of all charges against Abreu. The motion said only
`
`that "Further investigation produced information which compels
`
`the United States to promptly seek the dismissal of the
`
`indictment as to defendant Gabriel Abreu-Guzman only."
`
`On February 28, 1995, plaintiffs filed a complaint
`
`under Bivens and the Federal Tort Claims Act against federal law
`
`enforcement agents Alicia Ford, John Doe, and Jane Doe, alleging
`
`violations of Abreu's Fourth Amendment rights. Abreu sought
`
`$10,000,000 in damages, and his mother, Guzmán-Mieses, sought
`
`$5,000,000. Plaintiffs filed an amended complaint to add
`
`federal tort claims against the government for false arrest,
`
`false imprisonment, and malicious prosecution by federal agents
`
`acting within the scope of their employment. They also sued the
`
`agents individually for alleged violations of Abreu's Fifth and
`
`Sixth Amendment rights. In 1998, plaintiffs again amended their
`
`complaint, adding as parties agents William J. Mitchell, Jay
`
`-6-
`
`

`
`Soothoff, Steve Wiley, Waldo Santiago, Francisco J. Alvarez,
`
`Reginald Cheney, Ivan Rios, Richard Escalara, and Ana Saulnier.
`
`The district court granted defendants' motion for
`
`summary judgment on plaintiffs' Bivens claims on qualified
`
`immunity grounds, and also granted summary judgment to
`
`defendants on plaintiffs' claims under the FTCA. Plaintiffs
`
`appeal.
`
`II.
`
`A. The Bivens Claim and Qualified Immunity
`
`We review de novo the district court's grant of summary
`
`judgment, and affirm if the evidence, viewed in the light most
`
`favorable to plaintiffs, shows that there is no genuine issue as
`
`to any material fact and that the moving party is entitled to
`
`summary judgment as a matter of law. Hegarty v. Somerset Cty.,
`
`53 F.3d 1367, 1372 (1st Cir. 1995). The analysis of a qualified
`
`immunity defense is identical for actions brought under § 1983
`
`and Bivens. Graham v. Connor, 490 U.S. 386, 394 n.9 (1989).
`
`The Supreme Court has set forth a preferred method of analysis,
`
`most recently reinforced in Wilson v. Layne, 526 U.S. 603
`
`(1999). First, the court must "determine whether the plaintiff
`
`has alleged the deprivation of an actual constitutional right."
`
`Id. at 609, quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999).
`
`Second, the court must "proceed to determine whether that right
`
`-7-
`
`

`
`was clearly established at the time of the alleged violation."
`
`Id. Only if these two questions are answered in the affirmative
`
`does the court address the particular conduct in question. The
`
`question there is whether an objectively reasonable officer,
`
`performing discretionary functions, would have understood his or
`
`her conduct violated that clearly established constitutional
`
`right. Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982); see
`
`also Crawford-El v. Britton, 523 U.S. 574, 591 (1998).
`
`Here, the first two questions are easily answered in
`
`the affirmative. It has been clearly established for a very
`
`long time that the Fourth Amendment requires that arrests be
`
`based on probable cause. See, e.g., Beck v. Ohio, 379 U.S. 89,
`
`91 (1964).
`
`This case turns on the third question: whether an
`
`objectively reasonable officer would have understood that the
`
`arrest of the plaintiff violated these clearly established
`
`constitutional rights. Harlow, 457 U.S. at 818. This question
`
`itself is subject to certain ground rules. Evidence concerning
`
`the officer's "subjective intent is simply irrelevant" to a
`
`qualified immunity defense. Crawford-El, 523 U.S. at 588. It
`
`is objectively reasonable for officers to seek an arrest warrant
`
`"so long as the presence of probable cause is at least
`
`arguable." Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir. 1991).
`
`-8-
`
`

`
`When officers make an arrest subject to a warrant,2 then, even
`
`if probable cause is lacking, officers are entitled to qualified
`
`immunity "'unless the warrant application is so lacking in
`
`indicia of probable cause as to render official belief in its
`
`existence unreasonable.'" St. Hilaire v. Laconia, 71 F.3d 20,
`
`28 (1st Cir. 1995), quoting Malley v. Briggs, 475 U.S. 335,
`
`344-45 (1986). Similarly, an officer who conducts an arrest
`
`pursuant to a warrant is liable only "where the officer should
`
`have known that the facts recited in the affidavit did not
`
`constitute probable cause." Rodriques v. Furtado, 950 F.2d 805,
`
`812 (1st Cir. 1991).
`
`Abreu argues that the officers should have known that
`
`there was no probable cause because the photographic
`
`identification by the informant of "Junior" from Abreu's old
`
`license picture was tainted. Plaintiffs claim that agents
`
`"altered considerably" Abreu's learner's permit photograph,
`
`adding a moustache and an afro hairdo, before presenting it to
`
`We do not rely on Gerstein v. Pugh, which held that an
`2
`indictment "fair upon its face, and returned by a properly
`constituted grand jury, conclusively determines the existence of
`probable cause and requires issuance of an arrest warrant
`without further inquiry." 420 U.S. 103, 117 n.19 (1975)
`(internal quotation marks omitted). Here, the indictment was
`not of Abreu, but of John Doe 2, aka "Junior." The issue before
`the grand jury was whether there was a basis to indict "Junior,"
`not Abreu, and therefore the indictment cannot, standing alone,
`supply probable cause for Abreu's arrest.
`
`-9-
`
`

`
`the informant, and they altered it in order to make it conform
`
`to the informant's description of "Junior." As the district
`
`court observed, there is no evidence to support Abreu's
`
`allegation other than Abreu's 1999 affidavit. That affidavit is
`
`inconsistent with Abreu's earlier sworn statement that Agent
`
`Ford showed him "a photocopy of a photo and asked me if I was
`
`the person, I replied that it was me and inquired where they had
`
`obtained that photo, since it was very old." We have repeatedly
`
`held that a party opposing summary judgment may not manufacture
`
`a dispute of fact by contradicting his earlier sworn testimony
`
`without a satisfactory explanation of why the testimony is
`
`changed. See, e.g., Colantuoni v. Alfred Calcagni & Sons, Inc.,
`
`44 F.3d 1, 4 (1st Cir. 1994). Even if this were acceptable
`
`testimony, as it is not, it would not change the outcome. The
`
`issue is whether objectively reasonable agents would have
`
`believed they had probable cause.3 Whether there was an addition
`
`to the photograph or not, the informant identified the photo as
`
`"Junior" and Abreu also identified the photo as being of
`
`himself.
`
`Likewise, the dispute about whether alteration of a
`3
`photo is permissible or not is not material here for similar
`reasons. It is too much of a stretch to say that an altered
`photo (if altered), which Abreu could identify as being himself,
`misled the informant when he said the same photo was "Junior."
`It is even more of a stretch to say the agents were reasonably
`required to disregard that identification.
`
`-10-
`
`

`
`To the extent Abreu is arguing there was nonetheless
`
`no objectively reasonable basis to think there was probable
`
`cause, the argument fails. The undisputed facts reveal that the
`
`warrant was based in part on information provided by a
`
`cooperating defendant who was involved in the alleged
`
`conspiracy. An informant's information is considered reliable
`
`if the informant speaks with personal knowledge, as here. See
`
`United States v. Cochrane, 896 F.2d 635, 641 (1st Cir. 1990).
`
`Agents also corroborated facts related by the informant, lending
`
`support to the reliability of that information. See Illinois v.
`
`Gates, 462 U.S. 213, 244 (1983). Agent Riley obtained
`
`information from the Puerto Rico Phone Company that the cellular
`
`telephone number provided by the informant as belonging to
`
`"Junior" was registered to Abreu. There was documentary
`
`evidence that co-conspirator Nuñez called Abreu's cellular phone
`
`number twice during the time of the overt acts under
`
`investigation. Further, agents confirmed that there were no
`
`reports that Abreu's cellular phone number had been "cloned" --
`
`unauthorized access and use of another's phone number -- and so
`
`it was unlikely Nuñez was calling someone other than Abreu.
`
`A different issue is raised by plaintiffs' claim that
`
`the agents should either not have arrested Abreu or immediately
`
`released him when they realized he varied from the physical
`
`-11-
`
`

`
`description of "Junior." Plaintiffs argue that there were
`
`"major discrepancies" in the informant's description of
`
`"Junior," rendering the identification of Abreu unreliable. The
`
`description of "Junior" given by the informant was "a black,
`
`light skinned Hispanic male, approximately 6'0" to 6'2" in
`
`height, weighing approximately 175 to 180 pounds, black hair,
`
`clean shaven [and] 33 to 35 (years of age)." Abreu, 69 F.
`
`Supp.2d at 281-82. At the time of his arrest, Abreu was
`
`described as a "black Puerto Rican male," 5'10" in height,
`
`weighing 202 pounds, and 25 years old. Id. at 282. Where, as
`
`here, a physical description closely resembles an individual,
`
`some discrepancies in the description do not undermine the
`
`reasonableness of officers' belief that an arrestee was the
`
`person named in a warrant. See Rodriguez v. United States, 54
`
`F.3d 41, 46 (1st Cir. 1995) (three inch discrepancy in height
`
`and twenty pound difference in weight insufficient to render
`
`officers' reliance on physical description unreasonable).
`
`Further, the photo identification and telephone number evidence
`
`existed apart from any physical description.
`
`A reasonable officer could have believed there was
`
`probable cause that Abreu was "Junior." Plaintiffs failed to
`
`produce a material issue of fact demonstrating that "no
`
`reasonably competent officer would have found probable cause" to
`
`-12-
`
`

`
`arrest Abreu. Prokey, 942 F.2d at 72 n.4. Defendants,
`
`therefore, are entitled to qualified immunity as a matter of law
`
`on plaintiffs' Bivens claim.4
`
`B. The Federal Tort Claims Act Claims
`
`Under the Federal Tort Claims Act, the United States
`
`waives its sovereign immunity for "injury or loss of property .
`
`. . caused by the negligent or wrongful act or omission of any
`
`employee of the Government while acting within the scope of his
`
`office or employment, under circumstances where the United
`
`States, if a private person, would be liable to the claimant in
`
`accordance with the law of the place where the act or omission
`
`occurred." 28 U.S.C. § 1346(b). The FTCA exempts intentional
`
`torts from its sovereign immunity waiver but expressly allows
`
`actions against the United States for claims of "assault,
`
`battery, false imprisonment, false arrest, abuse of process, or
`
`malicious prosecution" arising out of "acts or omissions of
`
`investigative or law enforcement officers of the United States
`
`Government." 28 U.S.C. § 2680(h).
`
`In their amended complaint, plaintiffs also claimed
`4
`that defendants violated Abreu's Fifth and Sixth Amendment
`rights. Plaintiffs do not discuss those claims in their appeal.
`The district court correctly concluded that plaintiffs'
`allegations that Abreu was deprived of his due process rights,
`the purported basis for such claims, could not be sustained. We
`affirm that conclusion.
`
`-13-
`
`

`
`Plaintiffs' FTCA claims of false arrest, false
`
`imprisonment, and malicious prosecution are premised upon their
`
`contention that the agents relied on an improper and unreliable
`
`identification of Abreu as co-conspirator "Junior," which thus
`
`infects the reasonableness of their belief that there was
`
`probable cause to arrest, detain, and indict Abreu. The
`
`district court granted summary judgment to the United States on
`
`all of plaintiffs' FTCA claims, finding that agents had
`
`reasonable ground to believe Abreu was the person identified in
`
`the warrant. We review the court's dismissal de novo, applying
`
`Puerto Rico law to resolve plaintiffs' tort claims against the
`
`DEA according to the FTCA's "law of the place" provision, since
`
`the material acts and omissions alleged took place in Puerto
`
`Rico. See, e.g., Rodriguez v. United States, 54 F.3d 41, 44
`
`(1st Cir. 1995).
`
`The essential premise of plaintiffs' tort claims --
`
`that the agents acted negligently because no reasonable agents
`
`could have found probable cause to arrest Abreu as "Junior" --
`
`is dispatched by our analysis of plaintiffs' Bivens claim that
`
`defendants violated Abreu's Fourth Amendment right to be free
`
`from arrest without probable cause. Under Puerto Rico law,
`
`false arrest and false imprisonment claims share identical
`
`elements and focus on whether the arresting officers "lacked
`
`-14-
`
`

`
`reasonable cause for believing that [the suspect] committed a
`
`felony." Harrington v. United States, 748 F. Supp. 919, 933
`
`(D.P.R. 1990) (internal quotation marks omitted). Similarly, a
`
`plaintiff alleging malicious prosecution under Puerto Rico law
`
`must demonstrate, inter alia, that defendants acted with malice
`
`and without probable cause, defined as "a suspicion founded upon
`
`circumstances sufficiently strong to warrant a reasonable man in
`
`the belief that the charge is true." Lora-Rivera v. Drug
`
`Enforcement Admin. Dep't of Justice, 800 F. Supp. 1049, 1051-52
`
`(D.P.R. 1992) (internal quotation marks omitted). Thus, our
`
`finding the agents could have an objectively reasonable belief
`
`that there was probable cause that Abreu was "Junior" named in
`
`the arrest warrant extinguishes any basis for finding liability
`
`for false arrest, false imprisonment, or malicious prosecution.
`
`Accordingly, we find that the district court properly
`
`granted defendants motion for summary judgment, dismissing
`
`plaintiffs' FTCA claims against the United States.
`
`III.
`
`We affirm the district court's grant of summary
`
`judgment in favor of defendants on all of plaintiffs' claims.
`
`-15-

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