          United States Court of Appeals
                      For the First Circuit

No. 09-2406

         SILVIO SOLIS-ALARCÓN, MIGDALIA MÁRQUEZ ROBERTO,
               CONJUGAL PARTNERSHIP SOLIS-MÁRQUEZ,

                     Plaintiffs, Appellants,

                                v.

           UNITED STATES; FELTON CAMERON, Special Agent;
         GREGG CALAM, Special Agent; JULIO C. ABREU LORA;
        OSVALDO ALVARADO MIRANDA; AMARILIS CENTENO RAMOS;
                        JULIA CENTENO RAMOS,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Salvador E. Casellas, U.S. District Judge]


                               Before
                     Boudin, Selya and Lipez,
                          Circuit Judges.


     Luis A. Meléndez-Albizu and Law Offices of Luis A. Meléndez-
Albizu on brief for appellants.
     Tony West, Assistant Attorney General, Rosa E. Rodriguez-
Velez, United States Attorney, Barbara L. Herwig and Edward
Himmelfarb, Appellate Staff, Civil Division, Department of Justice,
on brief for appellees.



                        November 23, 2011
            BOUDIN, Circuit Judge. Early on the morning of September

18, 2003, agents of the Drug Enforcement Agency ("DEA") and Puerto

Rico police officers working as part of a joint federal-state task

force went to the residence at #I-17 Alondra St., Brisas de

Canóvanas, Puerto Rico.         Whether this address is technically in

Carolina or the adjacent town of Canóvanas is not clear.                      One

officer knocked on the door, which was opened by the home's owner,

Silvio   Solis-Alarcón.         Solis-Alarcón    says    that   the     officers,

wielding    guns,    then   entered     the   home   without    obtaining     his

consent.1

            The officers were there to arrest Juan Díaz-Suazo.                From

intercepts and surveillance, the members of the task force had

ample reason    to    believe    that    Díaz-Suazo     had   engaged    in   drug

transactions as a member of a major drug ring, and a warrant had

been issued for his arrest.        The agents aimed to arrest Díaz-Suazo

on the same day that, in accordance with an operational plan,

numerous other members of the drug ring were to be taken into

custody.

            The DEA agents' belief that they would find Díaz-Suazo at

#I-17 Alondra Street rested on events that occurred earlier in the

year.    In April 2003, task force officers identified Díaz-Suazo as

driving a red Dodge Durango in the course of a drug transaction,


     1
      The agents say that they had consent to enter and search the
house; but that is a disputed issue so at this stage we assume
arguendo that no consent was given.

                                        -2-
pulled him over to identify him and the vehicle and examined his

license.          The vehicle turned out to be registered to plaintiff

Silvio Solis-Alarcón at Calle Alon, Urb. Brisas de Canóvanas.                           At

some point in September, officers on the task force made inquiries

in the neighborhood of the address on Díaz-Suazo's license and

concluded that he did not live at that address.

                  Puerto Rico police officers working with the task force

also reported that in September 2003 they had seen Díaz-Suazo drive

the same vehicle to Solis-Alarcón's house at #17 Alondra St., open

the garage door or gate, park the vehicle and close the entrance.2

The officers also reported that the garage door or gate door had

been opened          by   Díaz-Suazo        through      some   kind of    automatic    or

electronic device.               The officers remained outside for about 30

minutes; no one emerged from the house or garage.

                  Although      the   DEA   agents       who    entered   the   house   on

September 23, 2003, had a valid arrest warrant for Díaz-Suazo, they

had no warrant to search the house.                   DEA agents Felton Cameron and

Greg Calam questioned Solis-Alarcón and his wife Migdalia Márquez-

Roberto both of whom denied that Díaz-Suazo lived at the house and

said       they    did    not    know   where       he   was.      Solis-Alarcón    then

accompanied the officers as they conducted a 15 to 20 minute search



       2
      Solis-Alarcón claims that these events took place on a single
day in April, but the relevant declarations make clear that police
undertook the surveillance of the house after determining that
Díaz-Suazo did not live at the address listed on his license.

                                              -3-
of the house while his wife remained in the living room answering

questions.    Díaz-Suazo was not found in the house but the agents

did seize the Dodge from the garage as one that had been used in a

drug crime, although it was later returned as failing to meet the

minimum value warranting forfeiture under DEA policy.

            Two years later, in September 2005, Solis-Alarcón and his

wife filed this action seeking $6 million for emotional distress

and punitive    damages   stemming    from   the   search.   The   amended

complaint asserted Fourth Amendment claims against the two DEA

agents named above, based on Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and tort claims

against the United States for the agents' conduct asserted under

the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-

2680 (2006).3

            After discovery, the government and the agents sought

summary judgment.    In September 2007, the district court granted

summary judgment for the agents on the Bivens claims, concluding

that the agents were protected by qualified immunity.          The court

later dismissed the FTCA claims, reasoning that its Bivens analysis

negated the fault element required for tort recovery under Puerto

Rico law.    These two legal rulings, which we review de novo, are



     3
      Claims of constitutional violations by state officers under
42 U.S.C. § 1983 and claims of tort liability against state
officers under Puerto Rico law were dismissed for want of timely
prosecution and are not pursued on this appeal.

                                     -4-
the focus of the present appeal and we start with the Bivens

claims.

            It is settled Fourth Amendment law that "an arrest

warrant founded on probable cause implicitly carries with it the

limited authority to enter a dwelling in which the suspect lives

when there is reason to believe the suspect is within."            Payton v.

New York, 445 U.S. 573, 603 (1980). Conversely, absent exigency or

consent, an officer may not search a third-party's residence on the

basis of an arrest warrant without having a search warrant for the

premises.   Steagald v. United States, 451 U.S. 204, 205-06 (1981).

            What,   then,   if   the    police   are   mistaken   as   to   the

subject's residence?    Our own position, conforming to that of most

other circuits, is that no Fourth Amendment violation occurs if

officers enter a third party's home under the reasonable belief

that the target named in the arrest warrant resides at the dwelling

in question and will be present at the time of the entry.              United

States v. Werra, 638 F.3d 326, 336-37 (1st Cir. 2011); United

States v. Graham, 553 F.3d 6, 12-13 (1st Cir.), cert. denied, 129

S. Ct. 2419 (2009).4

            It is clear that a reasonable belief requires something

more than "suspicion," but, even with the more demanding "probable


     4
      Accord, United States v. Cantrell, 530 F.3d 684, 690 (8th
Cir. 2008); United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir.
2005), cert. denied, 549 U.S. 1055 (2006); United States v.
Lovelock, 170 F.3d 339, 343-44 (2d Cir.), cert. denied, 528 U.S.
853 (1999).

                                       -5-
cause" test used for arrests, the Supreme Court has not used a

numerical    formula.    Rather,     it    has   asked   whether,   given   the

information available, a reasonably prudent man could believe that

the defendant had committed the crime.           Beck v. Ohio, 379 U.S. 89,

91 (1964). So, too, the reasonableness inquiry here is whether the

agents could reasonably believe that Díaz-Suazo lived at the house

(and so would likely be present there in the early morning).

            Federal officers sued for damages in a Bivens action,

like state officers sued under 42 U.S.C. § 1983, Wilson v. Layne,

526 U.S. 603, 609 (1999), have a further layer of protection

available to them, namely, qualified immunity where the officer

acted in     the   absence   of   guidance   "sufficiently     clear   that a

reasonable official" would understand that he was violating a

right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Qualified

immunity applies not only to the question whether a constitutional

right exists but also to the judgment whether the general standard

applies to the facts at hand.        Saucier v. Katz, 533 U.S. 194, 204-

05 (2001).

            This extra layer of protection does not disappear merely

because the underlying Fourth Amendment standard is itself one of

reasonableness.      The Supreme Court has drawn attention to the

potential confusion, Saucier, 533 U.S. at 203-205 ("reasonable

mistakes"); Anderson, 483 U.S. at 643-44 (possible to 'reasonably'

act unreasonably); but, in the end, qualified immunity against


                                     -6-
personal liability exists even for constitutional mistakes and

"protects 'all but the plainly incompetent or those who knowingly

violate the law.'"        Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085

(2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

              The Fourth Amendment standard is objective, United States

v. Proctor, 148 F.3d 39, 42 (1st Cir. 1998), and, where qualified

immunity is asserted, the district judge may apply it on summary

judgment so long as any disputed facts are assumed arguendo in

favor of the non-moving party.           Lopera v. Town of Coventry, 640

F.3d 388, 395-96 (1st Cir. 2011).           But, apart from consent, which

we    have    assumed   was   lacking,   plaintiffs   have    not   seriously

countered the DEA agents' version of the facts, especially their

description of what they knew and how they knew it.

              This description establishes that Calam, Cameron and the

two police officers on the task force who furnished the information

described above all worked together.          The DEA agents were entitled

to    rely on    plausible    information    supplied to     them   by   fellow

officers, cf. United States v. Hensley, 469 U.S. 221, 232-33

(1985), and here the latter were themselves federally deputized on

the    task    force.     "[W]here   law    enforcement    authorities      are

cooperating in an investigation . . . the knowledge of one is

presumed shared by all."        Illinois v. Andreas, 463 U.S. 765, 771

n.5 (1983).




                                     -7-
           In a nutshell, the DEA agents had evidence that Díaz-

Suazo was twice seen using a vehicle registered to Solis-Alarcón

and parked at the latter's house; that Díaz-Suazo had access to the

garage and presumably the house; and that Díaz-Suazo did not live

at the address set out in his driver's license.           Perhaps, too, they

could place weight on the judgment of the local officers that Díaz-

Suazo lived at #17 Alondra St.      And, if he did live there, it would

be reasonable to believe him in residence early in the morning.

           The judgment that he did live there would perhaps be a

close call if the issue before us were whether evidence seized in

the search should be suppressed.          In many like search cases, the

police had more potent evidence of residence, such as statements of

the subject himself, extensive records linking the person to the

address, or a combination of a reliable tip, a recent police

report, and a contemporaneous witness identification.5                See also

Werra, 638 F.3d at 337 ("doubt[ing]" that an informant's tip could

support a reasonable belief that suspect lived in a rooming house).

           However, such searches have occasionally been upheld on

thinner   evidence,   such    as   an   anonymous   tip    combined    with   a

statement from a seemingly untrustworthy informant, United States

v. Pruitt, 458 F.3d 477, 481-83 (6th Cir. 2006), cert. denied, 549

U.S. 1283 (2007).     Cf.    Thomas, 429 F.3d at 285-86.      And, if there


     5
      United States v. Risse, 83 F.3d 212, 214-15 (8th Cir. 1996);
United States v. Route, 104 F.3d 59, 61-63 & n.1 (5th Cir.), cert
denied, 521 U.S. 1109 (1997); Graham, 553 F.3d at 13.

                                    -8-
was error at all in the present case, it was not so egregious as to

defeat qualified immunity.        Assuming that the agents' judgment was

unreasonable, it was not "manifestly unreasonable."            Ringuette v.

City of Fall River, 146 F.3d 1, 5 (1st Cir. 1998).

           As   for   the   search   that   occurred   after    entry,   the

government invokes Maryland v. Buie, 494 U.S. 325 (1990), to

justify a protective sweep.          The officers were not required to

accept plaintiffs' word that Díaz-Suazo was absent, Buie, 494 U.S

at 330; there was clear evidence that their vehicle had been used

in a drug deal by a man who recently had access to the premises.

A search, limited to places where Díaz-Suazo might reasonably be

hiding, was equally covered by qualified immunity.

           While   the   search    was   being   completed,   Solis-Alarcón

accompanied the officers and his wife answered questions in the

living room; plaintiffs have suggested that this constituted an

unlawful detention and have also said that officers opened kitchen

drawers and looked through their mail, which would need explaining.

However, the plaintiffs have not developed the detention issue on

appeal and the scope of the search is raised only in the reply

brief and so is forfeited.     United States v. Sacko, 247 F.3d 21, 24

(1st Cir. 2001).

           This brings us to the FTCA claim against the United

States.   Under the FTCA, the federal government

           waives its sovereign immunity for 'injury or
           loss of property . . . caused by the negligent

                                     -9-
          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.'

Abreu-Guzmán v. Ford, 241 F.3d 69, 75 (1st Cir. 2001) (quoting 28

U.S.C. § 1346(b)(1)).

          In    substance,    the   FTCA     adopts   respondeat     superior

liability for the United States and, while it exempts intentional

torts from the sovereign immunity waiver, 28 U.S.C. § 2680(h), it

expressly allows actions 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."              Id.

Like the government, we will assume that any wrongdoing incident to

the search falls within the waiver as a false imprisonment.              Cf.

Unus v. Kane, 565 F.3d 103, 117 (4th Cir. 2009), cert. denied, 130

S. Ct. 1137 (2010).

          The district judge, finding that the "federal defendants

exercised due care" and had been reasonable, rejected the FTCA

claims that the agents would be liable under Puerto Rico tort law.

Solis-Alarcón   responds     that   Puerto    Rico    stringently    protects

privacy and does not recognize qualified immunity.             He suggests

that a Puerto Rico court would hold the agents liable in tort and




                                    -10-
that under the FTCA that liability has been assumed by the United

States.

            Puerto Rico imposes liability for fault or negligence

that causes injury, P.R. Laws Ann. tit. 31, § 5141 (2010), but

protecting   law    enforcement    agents   for     reasonable   mistakes    is

common, Unus, 565 F.3d at 117; Villafranca v. United States, 587

F.3d 257, 261 (5th Cir. 2009), and in at least two decisions, this

court assumed that Puerto Rico tort law would not impose personal

liability    for   mistaken     arrests   where     the   officers   would   be

protected in Bivens claims by qualified immunity.                Rodriguez v.

United States, 54 F.3d 41, 45-47 (1st Cir. 1995); Abreu-Guzmán, 241

F.3d at 75-76.

             For the most part, the Puerto Rico cases cited to us by

Solis-Alarcón use standards that appear little different than our

own Fourth Amendment decisions.         E.g., Pueblo v. Rivera-Colon, 128

P.R. 672 (1991) (certified translation) (applying Steagald).             Many

are concerned      not   with   civil   liability    of officers     but with

suppression of evidence.6       One of the few cases dealing with civil



     6
      E.g., Pueblo v. Santiago Alicea, 138 P.R. Dec. 230 (1995)
(certified translation) (suppressing evidence where consent to
search found invalid); Pueblo v. Narvaez Cruz, 21 P.R. Offic.
Trans. 431, 436 (1988) ("It is a well-settled rule that a
warrantless search or seizure is per se unreasonable"); Pueblo v.
Malavé-González, 20 P.R. Offic. Trans. 487, 494 (1988) ("a
warrantless search or seizure produces a presumption of nullity").
But see Quiñones v. Commonwealth 90 P.R.R. 791, 794 (1964); Vázquez
Figueroa v. Commonwealth, 2007 TSPR 168 (2007) (certified
translation).

                                    -11-
liability of officers, Valle Izquierdo v. Commonwealth, 2002 TSPR

64   (2002)    (official   translation),    albeit   refusing     to   dismiss

liability     claims on    much   more   egregious   facts,    spoke   of   the

importance of the state's law enforcement function and the need

              to balance the right to compensation of a
              citizen who is injured by the wrongful or
              negligent acts of a state officer, and the
              interests or, better said, the duty of
              government authorities to act vigorously in
              the investigation of criminal causes.

Id. at 12.      See also id. at 11 ("This compels us to strike a fair

and appropriate balance . . . .).

              This is the view that animates federal qualified immunity

doctrine. Harlow v. Fitzgerald, 457 U.S. 800, 813-14 (1982). Were

this not Puerto Rico's position, a significant question might arise

whether any local court could impose damage liability on federal

officers where they would be exempt in a federal lawsuit and

whether Congress under the FTCA would expect the federal government

to shoulder such liability.        See Caban v. United States, 728 F.2d

68, 75 (2d Cir. 1984) (Friendly, J. concurring).              Given Rodriguez

and Abreu-Guzmán, these questions need not be pursued in this case.

              Plaintiffs say that issues of Puerto Rico law should be

certified to the Puerto Rico Supreme Court, but this request came

too late and only after the district court rejected the FTCA claim.

See Boston Car Co. v. Acura Auto Div., Am. Honda Motor Co., 971

F.2d 811, 817 n.3 (1st Cir. 1992). A separate procedural claim has

been considered but needs no discussion.         An evidentiary claim is

                                    -12-
forfeit because it was developed only in a footnote in the opening

brief.   Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 61

n.17 (1st Cir. 1999).

          Affirmed.




                              -13-
