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
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"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
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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
1 The district court rejected plaintiffs' claim in their
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.
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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
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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
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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).
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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
2 We do not rely on Gerstein v. Pugh, which held that an
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.
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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.
3 Likewise, the dispute about whether alteration of a
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.
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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
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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
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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).
4 In their amended complaint, plaintiffs also claimed
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.
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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
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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.
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