            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,


                                        -2-
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).


                                   -3-
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.

                                         -4-
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

                                           -5-
             “‘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.

                                  -6-
            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




                                      -7-
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.”).

                                -8-
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.

                                 -9-
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.

                                           -10-
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


                                    -11-
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.

                                          -12-
