USCA1 Opinion

United States Court of Appeals

for the First Circuit

____________________

No. 97-1645

RAFAEL APONTE MATOS, ET AL.,

Plaintiffs, Appellants,

v.

PEDRO TOLEDO D VILA, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Selya, Stahl, and Lynch, Circuit Judges.

______________

____________________

Rafael Castro Lang with whom

___________________

Marlene Aponte Cabrera wa

_______________________

on brief for appellants.

Sylvia Roger-Stefani, Assistant
_____________________
whom

Carlos Lugo-Fiol, Puerto

________________

Serrano-Blasini,
_______________

Solicitor General,

Rico Solicitor General,

Deputy Solicitor

General,

were on

wit

and Edda
____
brief

for

appellees Toledo-D vila, Zapata, Ort z-D az, and Fern ndez.
John F. Nevares,
________________

with whom

Lizzie M. Portela,
__________________

Smith, and Smith & Nevares were on brief

_____
________________

Paul B
______

for appellees Haddock,

Torres-Lebr n, Laboy-Escobar, Col n, and Nieves-Dom nguez.

Isabel Mu oz Acosta, Assistant
_____________________

United States

Attorney

with whom Guillermo Gil, United States Attorney, was on brief for
_____________
appellees Plichta and Ilario.

____________________
February 3, 1998
____________________

LYNCH,
LYNCH,

home

was

Circuit Judge.
Circuit Judge.
_____________

searched

search sued the

under a

A Puerto Rican family whose

warrant

authorizing

intruding Puerto Rican and

a weapons

federal officers

and their supervisors on various claims of violation of civil

rights.

The district court dismissed all claims

defendants

in

a series

of

summary judgment

against all

orders.

One

argument made by plaintiffs on appeal leads us to reinstate a

portion of their case.

Plaintiffs

officer,

claim

that

the

Ernesto Laboy-Escobar, who

Puerto

Rican

police

filed the affidavit and

swore to facts in support of the search warrant lied in doing

so,

fabricating the "facts"

probable

cause.

asserted in order

Plaintiffs'

evidence

to establish

presents

genuine

disputes of fact

made by

Laboy in the

fabricated.

material

as to whether the

Fourth Amendment.

violates

that

probable cause

or were

been well established that

the

Further, we have

reasonably understand

establish

warrant application were true

It has long

fabrication

material representations

Warrant

in

Clause of

no doubt that

they may

not

warrant

such a

lie in

the

officers

order

application.

to

If

plaintiffs are able to prove their claim at trial, Laboy will

not be protected by qualified immunity.

Accordingly, it was error to enter summary judgment

in favor of

made any

Laboy on

showing that

that claim.

But plaintiffs have

others assisted or

-22

even knew

not

of the

alleged

falsehoods, nor

have plaintiffs

support

the claim that

the search itself

For

these and

other

reasons

the

provided facts

to

was unreasonable.

dismissal of

all

other

defendants and all other claims is affirmed.

I.

Entry of summary

we take

the facts in the

judgment is reviewed de

light most favorable

novo and

to the party

opposing summary

judgment.

See Acosta-Orozco
___ _____________

v. Rodriguez__________

de-Rivera, 1997 WL 775350 at *1 (1st Cir. Dec. 22, 1997).

_________

On

December 6, 1993,

plaintiffs Cruz Mar a Andino

Serrano (Andino Serrano) and her daughter Mar a Aponte Andino

(Aponte

Andino) were

at home in

R o Piedras,

Puerto Rico,

when Aponte

Andino noticed several unmarked cars approaching

the house.

A group of people emerged from the cars and began

walking toward the house.

none was uniformed.

be

robbed.

Plaintiffs

Without

officers, the individuals

with the

One member of the group had an ax;

ax and entered.

people not to kill them

believed they were about

identifying

themselves

broke down the

as

door to the

Only after plaintiffs

to

police

house

begged the

did the officers identify themselves

as police

house.

and show

The

the two women

a search warrant

warrant authorized a search

for the

of plaintiffs' home

for weapons, and nothing else.

The

and orderly

officers conducted the

fashion,

without the

-33

use

search in an efficient

of force.

Several

officers

were

questioned the two women inside about whether there

large sums of drug money hidden

Agent Michael Plichta

files

gain

also attempted to search

FBI

the computer

to find evidence of drugs or drug money, but could not

access to

hours, and

drugs,

inside the house.

any files.

failed to

drug money,

Another daughter,

returned and

The entire

turn up

evidence of illegal

or, indeed,

Iris Teresa

tried to enter

search lasted

of

any criminal

Aponte Andino

the house.

An

two

weapons,

activity.

(Iris Teresa),

officer outside

refused to let Iris Teresa through the blockade.

In

Rafael

Aponte

May of

1995,

Matos (Andino

Teresa filed this action for

Aponte Andino,

Serrano's

Andino

Serrano,

husband), and

damages under 42 U.S.C.

Iris

1983,

and against the federal officials

Bivens
______

They

under 28 U.S.C.

v. Six Unknown Named Agents, 403

__________________________

alleged

violations

of

the

Fourth

1331 and

U.S.

388 (1971).

and

Fourteenth

Amendment right to be free from unreasonable searches.

Plaintiffs

first group

is

sued two

composed

of

groups

the

of defendants.

state

and

federal

The

line

officers who participated in the search:

Puerto Rican Police

Officers Ernesto Laboy-Escobar, Ernesto

Torres Lebr n, Jimmy

Col n, Zulma Fern ndez, Iv n-Nieves

Michael Plichta.

violated

Plaintiffs alleged

plaintiffs'

searches by fabricating

right

to

be

Dom nguez, and FBI Agent

that these

free from

facts to obtain the

defendants

unreasonable

search warrant,

-44

conducting a search

that exceeded the scope of

the warrant,

and using excessive force in carrying out the search.1

Plaintiffs sued the second group of defendants, the

supervisors, alleging

and supervise the

defendants

that they failed

adequately to

first group of defendants.

included

both

state

and

federal

train

This group of

supervisors:

Puerto

Rico Police

Department

(PRPD) Superintendent

Pedro

Toledo-D vila, PRPD Supervisor Carlos Haddock, PRPD Auxiliary

Superintendent of

Zapata, PRPD

Lewis

Lieutenant

Freeh

"Ilario."

Inspection and

and

an

Juan Ort z-D az,

unidentified

that

FBI

and FBI

Jos

Director

supervisor

named

Plaintiffs alleged that these defendants knew that

the officers involved in the

and

Disciplinary Affairs

the

supervisors

search had records of violence,

had

callously

disregarded

plaintiffs' constitutional rights by inadequately supervising

their subordinates.

All defendants moved for summary judgment

qualified immunity.

granted

based on

On December 13, 1995, the district court

in part Agent Plichta's motion for summary judgment,

dismissing the claim

that Plichta engaged in

a "pretextual"

____________________

1.

Plaintiffs also

alleged

officials conducting the search

right to counsel during the
lawyer was

outside of

allow counsel to
not present

See
___

complaint

search.

the house, but

this claim

that the

deprived plaintiffs of their

They alleged that their
the police

be with her clients inside.

develop any argument

waived.

in their

as a specific

issue on

regarding the claim,

would not

Plaintiffs do
appeal, nor

and it is

deemed

King v. Town of Hanover, 116 F.3d 965, 970 (1st

____
_______________

Cir. 1997) (collecting cases).

-55

search

of plaintiffs'

entered partial

Plichta

On

May 29,

judgment dismissing

exceeded the

plaintiffs'

home.

scope

computer files.

of

On

the

1996, the

plaintiffs' claim

warrant

July 22,

by

court

that

searching

1996, the

court

entered partial judgment dismissing plaintiffs' claim against

the

unnamed federal supervisor "Ilario."

the

court dismissed

all the

remaining

defendants on qualified immunity

grounds.

On April 4, 1997,

claims against

all

Plaintiffs appeal

all of these dismissals.

II.

Our review of the district court's grant of summary

judgment is de novo.

See St. Hilaire v. City of Laconia, 71

___ ____________
_______________

F.3d 20,

24

pleadings,

(1st

depositions,

admissions on

1995).

answers

file, together

show that there

and that

Cir.

defendants'

to

with the

will

is entitled

Fed. R. Civ. P. 56(c).

motions for

summary

affirm

affidavits, if

any,

any material fact

to a

judgment as

judgment, plaintiffs

that

issue."

Betancourt-Lebron, 14
_________________

triable

F.3d 87,

In order to overcome

provable facts which

is

"the

and

come forward with "specific,

there

if

interrogatories,

is no genuine issue as to

the moving party

matter of law."

We

must

establish

Febus-Rodriguez
_______________

91 (1st Cir.

1994).

v.

For a

dispute to be "genuine," there must be sufficient evidence to

permit a

reasonable trier

of fact to

resolve the

issue in

-66

favor

of the

non-moving party.

See United States v. One

___ ______________
___

Parcel of Real Property, 960 F.2d 200, 204 (1st Cir. 1992).
_______________________

Qualified immunity protects both

federal and state

officials from liability for damages in a civil rights action

if "a reasonable officer could have believed [his actions] to

be lawful,

in

information the

light

this

established

at

second, if the

first

asserted

the time

of

understood

that

in

the

right."

1373 (1st Cir.

the

There

inquiry

by

the

right was clearly

officer

established

The

right

reasonable

1367,

635, 641 (1987).

standard.

constitutional

established

law

[acting] officer[] possessed."

Creighton, 483 U.S.

_________

to

of clearly

same

challenged

Hegarty v.
_______

the

Anderson v.
________

are two aspects

is

plaintiffs

whether

was

the

clearly

alleged violation.

The

established, is whether

situation

conduct

would

"have

violated

that

Somerset County, 53
________________

1995) (quoting Burns

_____

F.2d 233, 235-36 (1st Cir. 1990)).

and

F.3d

v. Loranger, 907
________

If the first level of the

analysis

yields

constitutional right

determination

was

not

relevant time, then we need

there is

clearly

that

the

asserted

established

at

the

not proceed to the second prong;

qualified immunity.

See Soto v. Flores,

___ ____
______

103 F.3d

1056, 1064-65 (1st Cir. 1997).

A.

The Use of False Statements to Obtain a Search Warrant

______________________________________________________

In

Delaware,
________

438

1978, the

U.S.

154

Supreme

(1978),

-77

Court

that

held

in

the

use

Franks
______

of

v.

false

statements

to obtain a

warrant, where the

are necessary to the finding

false statements

of probable cause, violates the

Fourth

Amendment's warrant requirement.

noted,

the Warrant

Clause of

the

As the Franks Court

______

Fourth Amendment

itself

contemplates the affiant's truthfulness:

[N]o

warrants

probable

cause,

shall

issue,

supported

but

by

upon

Oath

or

affirmation.

438 U.S. at 164 (quoting U.S. Const. amend. IV).

Franks

involved

challenge to

warrant

in a

______

criminal

proceeding

challenge:

or

and

set

forth

the

elements

of

there must be allegations of deliberate falsehood

of reckless disregard

for the truth

on the part

of the

affiant;

these allegations must be supported by an affidavit

or sworn

or otherwise

must

point

reliable statements;

specifically

to

the

application claimed to be false

supporting reasons; and the

the alleged falsity

to establish

enough to

This court

portion

the allegations

of

allege negligence

warrant

and must have a statement of

material that is the subject

or reckless disregard must

probable cause.

the

be necessary

See id. at
___ ___

171-72.

or innocent

mistake.

has consistently followed the Franks

______

of

It is not

See id.
___ ___

rule.

See,
____

e.g.,
____

United States
_____________

v. Valerio,
_______

1995); United States v. Carty,

_____________
_____

1993).

-88

48 F.3d

58, 62

(1st Cir.

993 F.2d 1005, 1006 (1st Cir.

An officer

who obtains a warrant

false statements which

through material

result in an unconstitutional

search

may be held personally liable

for his actions under

1983.2

"It

established

Fourth

has

long

been

Amendment's warrant

statement

knowingly

disregard for

clearly

requirement is

and

the truth,

warrant affidavit if the

finding of probable

that

violated

intentionally,

was included by

or

the

when 'a

with

false

reckless

the affiant

in a

false statement is necessary for

cause.'"

Clanton v.
_______

Cooper, 129
______

F.3d

1147, 1154 (10th Cir. 1997) (quoting Franks, 438 U.S. at 155______

56).

See also Krohn v.

________ _____

Cir.

1984)

(noting

United States, 742 F.2d 24, 26

_____________

plaintiff's

civil

rights

claim

(1st

that

federal agent intentionally misrepresented facts necessary to

obtain warrant).

The

force of the Franks rule in a

______

reinforced by the decision of

1983 action is

the Supreme Court this term in

Kalina v. Fletcher, 1997 WL 756635 (U.S. Dec. 10,

______
________

that case, the

to

Court held that a prosecutor

absolute immunity

affidavit supporting

and may be

for

making

false

an application

1997).

is not entitled

statements

for an arrest

personally liable for such

In

actions.

in

an

warrant,

See
___

id. at
___

*3.

____________________

2.

This

is

constitutional

similar
source

to,
as,

and
the

derives
claim

from
that

an

the

same

officer

reasonably should have known that facts alleged in support of

a warrant application were insufficient to establish probable
cause.

See Malley v. Briggs, 475 U.S. 335 (1986).

___ ______

______

-99

Here, plaintiffs allege that Laboy fabricated facts

in support of probable

cause in order to obtain a warrant to

search plaintiffs' home, and that other

with

Laboy to

Plaintiffs have

obtain

this fraudulently

presented no

evidence

defendants conspired

procured

warrant.

that other

officers

conspired with Laboy

we

readily

affirm

to falsely obtain a search warrant, and

the district

court's

grant

of summary

judgment on that claim.

As to Laboy, there is evidence

1993,

FBI

Agent

individuals intended

Plichta

received

to break into

that on December 2,

tip

that

several

plaintiffs' home, hoping

to find two million dollars in hidden drug money and weapons,

and that they

1993,

planned to murder plaintiffs.

Plichta notified Sergeant

On December 3,

Carri n of the

Puerto Rico

Police Department of the information, and suggested that they

obtain a warrant and search

We

do

not

comment on

the

plaintiffs' home for the

implicit

suggestion

information alone could support a warrant.

money.

that such

In any event, the

Puerto Rican Police did not seek a warrant on that basis.

On December

Laboy.

Plichta

Laboy told

spoke

with

4, Plichta

discussed the matter

Plichta that on

December 3,

Carri n,

had

Laboy

with

soon after

independently

established facts sufficient to show probable cause to search

plaintiffs' home.

another

matter, an

He said

illegal

he had observed, while working on

weapon

-1010

exchange

in

front

of

plaintiffs' home.

warrant

On

based on

his

December 6, Laboy

affidavit,

and

obtained a

invited

search

Plichta

to

participate in the search.

Laboy's affidavit in support of his application for

a warrant stated:

[On the]
about

3rd day

4:30 p.m.

Cupey in R o

of December, 1993,
I was

in

the area

at
of

Piedras, Puerto Rico trying

to locate an address about a complaint

am investigating and upon arriving to the

Pedro
when

Castro Road
I

turn at

realized

the end

there

approximately
skin, brown
black

which is a

color

was

dead end,

of the
an

feet tall,

individual
with

hair giving a long

firearm

individual, who was

to

same I

white

wood and

another

white

approximately 5 feet

10 inches tall, wearing khaki pants and a

black

sweater

and

at

that

looked toward the vehicle I

time

both

was in . . .

and the individual in the khaki pants and

black sweater walked toward the front and
gave

the weapon

once

again to

the

6'

individual with white skin and turned his

back and
other

entered

the

individual

residence. . . .

also

me

there

was

The

entered

That for my

as investigating agent
by

residence.

experience

what was observed

violation

to

Weapons Act of Puerto Rico and that

residence

is

being

the

utilized

for

the
said
the

custody of firearms.

The affidavit also

described plaintiffs' house as

the place

to be searched and added that "[t]he services of the K-9 Unit

of the Puerto

Rico Police shall be utilized

for this search

and seizure."

The

district

court

granted

defendants, finding that "[p]laintiffs .

summary judgment

to

. . have failed

to

-1111

produce a scintilla of

that

the

non-speculative and reliable evidence

Defendant-Officers

either

knowingly

used

information or recklessly

disregarded the truth in

obtain the

disagree with the

warrant."

We

false

order to

district court,

and reverse the grant of summary judgment as to Laboy on this

claim.

Plaintiff Andino Serrano put in sworn evidence that

she was

in her house at

enter the house.3

the time Laboy says he

She says

saw two men

that no man entered

the house.

She also says that the physical description given by Laboy of

one

of the

husband.

men who

allegedly

entered the

house fits

But, she says, her husband did not enter the

and was not at the house then.

her

house

Her husband, plaintiff Rafael

Aponte Matos, confirms this and says he was elsewhere.

It is difficult to think of what more could be said

by the

plaintiffs to

raise a

Laboy's statements in the

question as

to the

truth of

affidavit that two men carrying

____________________

3.

Andino Serrano's affidavit states:

I was at my house,

and no male, not even

my husband, entered my house at 4:30 p.m.

on December 3,

1993. . .

the sworn declaration

. I have

submitted in order

to procure a search warrant to search

home on

December 6,

the physical

read

1993, and

description of

my

although

one of

the

individuals described in said declaration

resembles my husband, I
he was not

know for a

at my house that

time.

-1212

fact

day at that

weapon entered the plaintiffs' house.4

home

at the time says that did

not happen.

suggest that Laboy had a motive to

the house

the

to see if

The plaintiff who was

lie:

he wanted access to

there was a "narco-treasure"

information from Agent Plichta suggested.5

plaintiffs

note, when

weapon was found.

statement in the

observation

the house

was

the house, and

experience,

this

to

the probable

cause

illegal

to contradict Laboy's

one with an

that, based on

meant

illegally being used for custody of firearms.

essential

And finally,

affidavit that he saw two men,

and

there, as

searched, no

This evidence tends

illegal weapon, entering

was

Plaintiffs also

the

house

his

was

That statement

determination.

See

___

Franks, 438 U.S. at 155-56.

______

____________________

4.

Laboy

attempts

to buttress

his

position through

affidavit of Officer Nieves Dom nguez,

the time.

But Nieves

the

who was with Laboy at

saw nothing himself and simply reports

what Laboy said after he made the alleged observations.

5.

Plaintiffs say that on December 22, 1993, two weeks after

the police

search,

plaintiffs' home.
said they were

three
One of

unidentified

robbed

them, dressed as a police officer,

there to investigate

When plaintiffs opened the

individuals

the December 6

search.

door, the two other robbers

drew

their guns and held plaintiffs Andino Serrano, Aponte Andino,

and

Rafael

questioned
money.

The

Aponte

Matos

at

plaintiffs about the

robbers

went

gun

point.

The

intruders

$2 million dollars

directly

to

the

places

in drug
where

plaintiffs kept their

and jewelry.

valuables, and took money,

Plaintiffs have

alleged that the

a handgun,
robbery was

connected to the prior police search.

-1313

Our decision

will succeed on

does not forecast

whether plaintiffs

this claim at trial; that is for the jury to

decide.6

B.

The Claim That the Search Exceeded the Scope of the

________________________________________________________

Warrant
_______

The warrant authorized a search of plaintiffs' home

for weapons, specifically for "anything [in plaintiffs' home]

that

is in

Rico."

violation to

Plaintiffs

[sic]

the Weapons

claim that the searching

Act of

Puerto

police officers

and Agent Plichta exceeded the scope of the warrant by asking

them

questions about two million dollars allegedly hidden in

the house and by Plichta's efforts to get into their computer

files.

The Computer Search

___________________

The unlawful computer search

is

not properly before

perfect an

us, as

claim against Plichta

plaintiffs failed

timely to

appeal from the district court's entry of summary

judgment on

issued

that claim.

On May 29, 1996, the district court

a Memorandum and

Order granting summary

judgment to

____________________

6.

The parties' briefing sometimes characterizes the Franks

______

issue as an
We

reject

involved.
whether

issue of whether there was

that
The

the

conceptualization
Franks rule
______

search

was

is as

subjective

motivations is rarely

Robinette,
_________

117

417,

419

legal doctrines
stated it;

Under

the

not

Fourth

inquiry into an officer's

appropriate.
(1996); Whren
_____

States, 116 S. Ct. 1769, 1774 (1996).

______

-1414

the

we have

pretextual.

Amendment reasonableness calculus,

S. Ct.

of

a pretextual search.

See
___
v.

Ohio v.
____
United
______

Plichta

on the computer

search claim,7 and

judgment dismissing

the claim.

within the meaning

of 28 U.S.C.

This

was a

entered partial

final judgment

1291 and Fed. R.

Civ. P.

54(b), and was immediately appealable to this court.

Fed. R.

App. P. 4(a)

required plaintiffs to file a

from that final judgment within

60 days.

notice of appeal

Plaintiffs did not

file a notice of appeal in this case until May 5,

after the 60 day deadline had passed.8

The Search of the House

1997, long

_______________________

The

issue

whether

the

granting summary judgment to the

Plichta on

the claim that

district

court erred

in

other defendants as well as

the search exceeded the

scope of

the warrant has been timely appealed.

In 1993

that

search must

authorized

U.S. 79,

it was

undoubtedly "clearly

not

exceed

in the warrant.

See
___

the

established"

scope of

Maryland v.
________

the

search

Garrison, 480
________

84 (1986) ("By limiting the authorization to search

to the specific areas and

things for which there is probable

____________________

7.

The

court reasoned

that

because Plichta's

attempt to

search plaintiffs' computer files was unsuccessful (due to an

apparent inability to "boot up" the hard drive), there was no
search within the meaning of the Fourth Amendment.

We do not

address this conclusion because the appeal is untimely.

8.

The

judgment

appeal of

the

district court s

grant of

in favor of the unnamed federal supervisor "Ilario"

is not properly before us for the same reasons.

court entered partial
22, 1996.
did not do

summary

The district

judgment in favor of "Ilario"

on July

Plaintiffs had 60 days to appeal the judgment, but

so until the current

appeal was taken on

May 5,

1997.

-1515

cause

to

search,

the

[Fourth

Amendment

particularity]

requirement

ensures

tailored to

its justifications,

character

Framers

of

the

that

the

search

and

wide-ranging

intended to

will

be

will not

exploratory

prohibit."); cf. Horton

___ ______

carefully

take on

the

searches

the

v. California,
__________

496 U.S. 128, 140 (1990) ("If the scope of the search exceeds

that permitted by the terms of a validly issued warrant . . .

the subsequent

But to state the

seizure is unconstitutional

without more.").

rule is not to answer the

question of when

the search does in fact exceed the warrant.

Plaintiffs' evidence

the officers who

immunity.

began

their

is insufficient to

carried out the search are

All plaintiffs

search,

they

offer is

not entitled to

that when

"questioned"

show that

the officers

plaintiffs

Andino

Serrano and

Aponte

million dollars in

that the

Andino

as to

the

hidden drug money.

officers searched anywhere

otherwise could not

whereabouts

There

of

two

is no evidence

in the house

have searched for a weapon.

that they

See United
___ ______

States v. Ross, 456 U.S. 798, 820 (1982) ("A lawful search of
______
____

fixed premises generally extends to

the object of

Court

that

the search may be

provided an illustration

authorizes an

weapons also

officer

provides

the entire area in which

found . . . .").

pertinent here:

to search

authority to

"A warrant

home for

illegal

open

closets,

chests,

drawers, and containers in which the weapon

-1616

The Ross
____

might be found."

Id.
___

at 821.

Further,

officer could reasonably

to be in a

the house

for immunity

think that weapons are

house if there are millions of

as well,

related to the

encounter

at least

and that

warrant.

the question

The topic of

purposes, an

more likely

dollars hidden in

was sufficiently

questioning during an

which itself does not violate the Fourth Amendment

is not so clearly defined

against the officers as to deprive

them of

(1983)

immunity.

(officers

Cf. Florida
___ _______

do

not

v. Royer, 460 U.S.

_____

violate

Fourth

491, 497

Amendment

by

approaching individual in public place and posing questions);

United States v. Mendenhall, 446 U.S. 544, 554 (1980) (Fourth

_____________
__________

Amendment

not

individuals

violated

without

when

officers

particularized

ask

questions

suspicion,

where

reasonable person would not feel obligated to answer).

is

no

suggestion

that the

forced

plaintiffs

to answer

were free not

(Fourth

where

to answer.

Amendment

officer

searching

officers

the questions,

See
___

asks driver

questions

There

ordered or

and plaintiffs

Robinette, 117 S. Ct.

_________

reasonableness requirement

of

not

unrelated to

at 421

violated

initial

justification

for

stop,

and

driver

voluntarily

answers

questions and consents to search).

Plaintiffs'

qualified immunity.

summary

judgment

evidence

to

overcome

We affirm the district court's

grant of

dismissing

is

the

exceeded the scope of the warrant.

-1717

inadequate

claim

that

the

search

C.

Failure to Knock and Announce

_____________________________

Plaintiffs assert

the

that the officers

search violated plaintiffs'

who conducted

Fourth Amendment

rights by

failing to announce their presence and identify themselves as

police before

they entered the

door with an ax.

approaching

however,

rule on

(1997)

exception

to the

presence or

the claim

plaintiffs' rights,

1416

breaking down

the

The district court acknowledged that "upon

the entrance

announced their

house by

to knock and

the officers

their purpose."

that

see Richards
___ ________

(Fourth

home,

Amendment

this was

It did

a violation

v. Wisconsin,
_________

does

not

never

117 S.

permit

announce rule); Wilson

______

not,

of

Ct.

blanket

v. Arkansas,
________

115 S.

Ct 1914 (1995)

part of

reasonableness inquiry), nor

that there

knock

(failure to knock and

is, on these

and announce,

established

the

do we.

facts, a right

asserted

announce forms

Even assuming

to have the

right

was

not

police

clearly

as being of constitutional dimension at the time

the alleged violation occurred.

As Richards
________

an absolute

knock-and-announce rule nor

exceptions to the

the

neither announced

created categorical

rule for felony drug cases.

the court found that

justified

makes clear, Wilson

______

In Richards,
________

a no-knock entry into a hotel

room was

where the officers had a reasonable suspicion that

occupant

opportunity.

would

See
___

destroy

the

evidence

Richards, 117 S. Ct.

________

if

at 1422.

given

We

the

do not

-1818

reach

the question of whether it is reasonable for officers,

armed

with a

announce they

warrant

to

are police

search for

weapons,

before they enter

to fail

the area

searched, because we resolve this on immunity grounds.

to

to be

In

St.
Hilaire,
_____________

this

court

held

that

the

requirement that officials identify themselves to the subject

of a

search or

"not clearly

seizure, absent

exigent circumstances,

of constitutional dimension" until

was

the Supreme

Court decided Wilson in 1995, and that the notice requirement

______

"was not

. .

. clearly

established in

constitutional requirement

F.3d at 28.

to

did

not

defendants

until Wilson."
______

We thus held that

identify themselves to

violate

were

Circuit as

St. Hilaire,
___________

"clearly

"entitled

71

defendant officials' failure

the plaintiff s decedent

failure to announce] theory."

The same

this

established

to qualified

law,"

immunity

in 1990

and

the

on

[the

Id.
___

is true here.

Plaintiffs' claim rests at

best on

Wilson; Wilson
______ ______

plaintiffs'

was decided in

residence occurred in 1993.

1995; the

search of

We affirm the grant

of summary judgment to defendants on this claim.

D.

Use of Excessive Force in Executing the Search

______________________________________________

Plaintiffs

claim that the search of their home was

unreasonable because it was carried out with an excessive use

of force.

-1919

Plaintiffs

basic theory

arguments

seek shelter

point

to

us

the

conscience" standard

U.S. 165 (1952).

in the context

under

the

standard."

But

in the

substantive

may

wrong

due

Graham
______

sound but

doorway.

process

announced in Rochin
______

their

Plaintiffs

"shocks

the

v. California, 342
__________

an "excessive force" claim that arises

of a search or seizure

Fourth

be

Amendment's

v. Connor,
______

is "properly analyzed

'objective

490

(expressly rejecting the Rochin "shocks

______

U.S.

reasonableness'

386,

388 (1989)

the conscience" test

where the

claim arises

in the context

stop).

"The 'reasonableness' of

must be

judged from the perspective of

on

scene,

the

hindsight."

rather

Id.
___

at 396;

Restaurants, 67 F.3d
___________

excessive

force

with

of force

a reasonable officer

the

see also
__________

must

investigatory

a particular use

341, 352 (1st

claim

defendant's actions

in light of the

than

of an

20/20

vision

Alexis v.
______

McDonald's
__________

Cir. 1995) ("[A]

demonstrate

were not objectively

of

that

the

viable

police

reasonable, viewed

facts and circumstances confronting

him and

without regard to his underlying intent or motivation.").

Plaintiffs

support

of their

failure

to announce

point

excessive

to

the

force

their presence,

following

claim:

the

actions

the

use of

in

officers

10 to

15

officers to carry out the search,

down the door,

the use

the use of an ax to

of dogs during

the search, and

knock

one

-2020

officer s

allegedly

plaintiff Iris Teresa.

threatening

behavior

directed

at

out in

We will assume

that there may be

searches carried

such an excessive

manner that they

are unreasonable

under the Fourth Amendment.

"excessive force" claim

and generally

arrestee.

injury.

absence of

in

arises in the

involves physical

Here,

used on any

It is also true that the typical

contact and

there was no arrest, no

of the plaintiffs,

To

context of an

the extent

physical force, the

their depositions

these circumstances, we doubt

at all has been stated,

the

physical force was

physical

such a claim

in the

plaintiffs themselves stated

that the searching

themselves in an orderly manner

injury to

and none sustained

there can be

arrest

officers conducted

once inside the home.

Under

any Fourth Amendment violation

let alone one unreasonable enough to

overcome official immunity.

834

F.2d

1223,

1229

(5th

See Hinojosa v. City of Terrell,

___ ________
_______________

Cir. 1988)

excessive force claim was not sustainable

(in

1983

suit,

where there was no

evidence of physical injury).

The only

Officer

when

she

allegation worthy

of discussion is

that

Jimmy Col n directed abusive language at Iris Teresa

sought entry

displayed his

to

plaintiffs'

weapon and threatened

not stay behind the police barricade.

-2121

home, and

to kill her if

that

he

she did

We assume that

is accurate -- that Col n

at her.

Iris Teresa's version of

the facts

threatened her and pointed his gun

Even so, as the district court held, defendant Col n

is entitled to

qualified immunity.

Iris

Teresa insisted on

entering the

house at the

time a police search

for weapons

was underway.

Col n was

posted at the blockade

and it was

his

duty to

ensure

that

no one

reasonably could have believed

entered

the house.

that he needed to assert

He

his

authority

in order

to

through the blockade.

reasonably intended

Indeed,

to avoid

force to restrain her.

force was used.

evidence

prevent

Iris

Teresa

from

passing

the threat may well have been

the need

to use

any physical

There is no dispute that no

physical

Cf. Hinojosa, 834 F.2d 1223, 1229-30.9

___ ________

is plainly insufficient

to sustain a

The

finding that

Col n's actions were objectively unreasonable.

____________________

9.

In

Hinojosa, the
________

Fifth

situation and found the lack

Circuit confronted

of physical injury to be highly

relevant in deciding the excessive use of force claim:

There

is absolutely

that

Hinojosa

touched, during

no evidence

was

struck,

the incident.

. .

or

even

Hinojosa

did not claim to have suffered even minor

physical

injuries

similar

or

intrusion.

He

sought no medical attention. . . .

even stretching the
possible

in a

Hinojosa,

the

Jones'

testimony as far

as

most favorable

to

light

only harm

pointing

understandable

his

834 F.2d at 1230.

-2222

Supervisory Liability

gun

was

by
the

emotional

at being the target

of the gun point.

E.

occasioned

immediate

distress of Hinojosa

Thus,

_____________________

Finally, we affirm

summary

judgment

Toledo-D vila,

on

negligent

claim

Zapata, and

supervisory capacity.

were

the

in

the district

court s grant

of

that

defendants

Haddock,

Ort z-D az

are liable

in their

Plaintiffs argue that these defendants

the

training

and

supervision

of

the

searching officers, and that they therefore exhibited callous

indifference to plaintiffs

Supervisory

predicated on a

constitutional rights.

liability

under

respondeat theory, but only on

the supervisor s own acts or omissions."

109 F.3d 802,

marks omitted).

there

1983

808 (1st Cir.

the basis of

1997) (citations and

liability,

and

be

Seekamp v. Michaud,
_______
_______

There is supervisory liability

is subordinate

"cannot

(2) the

quotation

only if (1)

supervisor s

action

or

inaction

constitutional

was

"affirmatively

linked"

violation caused by the subordinate.

(citing Lipsett v. University of Puerto Rico, 864

_______
__________________________

902 (1st Cir.

1988)).

That affirmative link

"supervisory encouragement,

gross

to

negligence

amounting

condonation or

to

deliberate

the

See id.
___ ___

F.2d 881,

must amount to

acquiescence, or

indifference."

Lipsett, 864 F.2d at 902.

_______

There

except for the

See supra.
___ _____

supposed

is no

possibility of

subordinate liability

falsification claim against defendant

But plaintiffs' evidence

falsehoods to

supervisory

Laboy.

does not link

Laboy's

condonation or

callous

-2323

indifference.

None of the defendants here had any connection

to Laboy's affidavit.

Plaintiffs

offer evidence

pressured his subordinates

warrants

prove

every month.

that defendant

to execute at least

They also

Haddock

three search

offer documents they claim

Laboy's history of misconduct, including a 1989 Puerto

Rico

Supreme Court case

irresponsibly

in a

criticizing Laboy for

criminal case

in 1985.

Castillo Morales, 123 P.R. Dec. 690 (1989).

________________

having acted

See
___

People v.
______

That Haddock may

have exerted pressure on his staff to execute search warrants

is not evidence he acquiesced in or callously disregarded the

making of false statements to

a supervisor's failure

miscreant officer

it

amounts

to

Martinez, 112 F.3d

________

citing Laboy

before

the

a judicial officer.

to take remedial actions

may result in supervisory

"deliberate

indifference,"

1, 4 (1st Cir. 1997),

And while

regarding a

liability where

see
___

Diaz
____

v.

a judicial opinion

as irresponsible in something he did nine years

events at

issue

here does

not

establish such

indifference.

III.

The district

court's grant of summary

judgment is

reversed and remanded with respect to the falsification claim

_____________________

against

defendant Laboy

in

the

-2424

obtaining

of

the

search

warrant,

and

affirmed
________

with respect

to

all

other claims,

including the claims against all the remaining defendants.10

Each side shall bear its own costs.

____________________

10.

After

oral

argument,

"Supplemental Request for

if

we

reverse as

district

court

to

Relief."

some

with

plaintiffs

the

Plaintiffs

defendants,
instruction

supplemental (pendent party)

submitted

request that

we remand
that

to

it

U.S.C.

1367.

reversing
see it,

The

jurisdiction over the remaining

claims that

so without

district court,

prejudice

See
___

which

we are

claim against Laboy.

As we

false statements

of the execution of

plaintiffs' invitation to

district court to exercise

do

to

entirely distinct from any

might arise out

We decline

claim as

that Laboy made

warrant application is

itself.

only

is the falsification
the claim

the

exercise

defendants as to whom there are viable state law claims.

28

in his

state law
the search

instruct the

supplemental jurisdiction; but we

to plaintiffs'

in its discretion, to

right

to ask

the

exercise supplemental

jurisdiction on remand.
Our disposition of this matter obviates the need to rule

on

defendants' "Motion

Request

for Relief

Requesting Appellants'

Be Stricken,"

which

they submitted

response to plaintiffs' "Supplemental Request."

-2525

Supplemental
in