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Bryan v. United States

United States Court of Appeals, Third Circuit

January 18, 2019


          Argued on May 22, 2018

          Appeal from the District Court of the Virgin Islands (Division of St. Croix) (D.C. Civil Action No. 1-10-cv-00066) District Judge: Honorable Wilma A. Lewis

          David M. Nissman, McChain Nissman Law Group Counsel for Appellants

          Samantha L. Chaifetz, Joycelyn Hewett, Chad A. Readler, Mark B. Stern, United States Department of Justice Appellate Section, Jeffrey E. Sandberg United States Department of Justice Counsel for Appellee

          Before: KRAUSE, ROTH and FISHER, Circuit Judges.


          ROTH, Circuit Judge.

         In 2008, Carlyle Bryan, Julie Beberman, and Charles Francis (the travelers), residents of St. Croix in the U.S. Virgin Islands, embarked on a Caribbean cruise aboard the Adventure of the Seas. Their trip took them to a number of foreign ports before they returned to the United States. During their trip, U.S. Customs and Border Protection (CBP) officers searched their cabins on suspicion of drug-smuggling activity. Those searches yielded no contraband and prompted the three travelers to assert Bivens claims[1]against the officers for allegedly violating their Fourth Amendment rights. They also asserted tort claims against the United States government under the Federal Tort Claims Act (FTCA or the Act). The District Court of the Virgin Islands granted summary judgment in favor of the officers and the government.

         Because we conclude that the officers are entitled to qualified immunity and the United States government is shielded from liability under the FTCA's discretionary function exception, we will affirm.


         The Cruise

         The cruise lasted from August 31 to September 7, 2008. Beberman had booked two cabins for the three travelers: one for Bryan and herself, and a second for Francis. The cruise began in the United States. They sailed from San Juan, Puerto Rico, stopped at several foreign ports, including Antigua, Barbados, St. Lucia, and St. Maarten, proceeded to St. Thomas in the U.S. Virgin Islands, and returned to San Juan.

         The travelers had to pass through a CBP checkpoint in San Juan before boarding the ship. Bryan and Beberman went through without incident. Francis's trip through the checkpoint was not so smooth. When a CBP officer asked Francis what his occupation was, he hesitated and then said "oil change." (Francis worked with automobiles and changed motor oil.) CBP officers then inspected Francis's bag. There was a very full canister of shaving powder in the bag. When a CBP officer opened the canister, the powder dispersed through the room and coated the officer. Bryan laughed. They contend now that the inspection of their cabins was in retaliation for Bryan's laughing at the CBP officer. The officers found nothing unlawful in Francis's bags. CBP Officer Baez made a notation in the Treasury Enforcement Communications System (TECS) database that Francis had appeared "disoriented and nervous" and that it took him some time to state his employment, but that the examination of his bag did not uncover anything.[2]

         The Creation of "Lookout" Entries by Officer Timothy Ogg (September 5, 2008)

         CBP Officer Timothy Ogg, stationed in San Juan, was routinely assigned the task of reviewing passenger manifests for the Adventure of the Seas to identify passengers worthy of further scrutiny. Around September 1, he compared the names on the passenger manifest against the names on reports logged onto TECS. Both Bryan's and Francis's names yielded matches; both had TECS entries related to drug smuggling. Officer Ogg found two entries on Bryan. The first, dated May 17, 2000, was authored by Immigration & Customs Enforcement (ICE) Agent Hillary Hodge. Referring to Bryan, the entry read: "Subject is associate[d] with suspected drug smugglers within the U.S. Virgin Islands. Subject is also suspected of smuggling narcotics within the Virgin Islands. If encountered, conduct 100% exam . . .."[3] Officer Ogg later testified that he had previously worked with Agent Hodge and credited his entry in part because he regarded Hodge as an excellent worker. The second TECS entry, from 2004, referred to the prior entry, characterized Bryan as a "suspect in USVI drug smuggling," and encouraged agents to "document [his] co-travelers, employment and reason for travel."[4]

         As for Francis, Officer Ogg uncovered two TECS reports from 2006 identifying Francis as the "Subject of [a Drug Enforcement Administration] indictment." The first report was authored while the Drug Enforcement Administration investigation was going on and characterized Francis as a "subject of current interest"; the second was authored after the investigation had ended and referred to him as a "Previous Suspect."[5] Both reports urged personnel to alert special agents if they encountered Francis.

         According to Officer Ogg's subsequent deposition testimony, another factor aroused his suspicion: CBP officers had previously made narcotics seizures on the Adventure of the Seas on the same route. A number of islands along the route were known to be sources of narcotics smuggled into the United States. Officer Ogg characterized them as high-risk islands.

         On September 5, primarily on the strength of the TECS records concerning Bryan and Francis, Officer Ogg created "lookout" entries for Bryan and Francis in the TECS database. A "lookout" is a TECS entry that alerts CBP officers to specific passengers and recommends certain investigative steps when they are encountered. In the case of Bryan and Francis, the "lookout entries" noted their connection to "drug smuggling" and recommended, in the standard TECS shorthand (i.e., "100% exam"), that their cabins be inspected before their return to San Juan on September 7.[6]

         Officer Ogg also entered a separate "lookout" for Beberman. Except for the co-travelers listed, the "lookout" entry for Beberman mirrored Bryan's. At his deposition, Officer Ogg gave two reasons for the Beberman "lookout." First, she was traveling with two individuals about whom there were independent TECS entries predicated on drug-smuggling concerns. Second, as a practical matter, Officer Ogg stated that he had to enter a lookout for Beberman to ensure that Bryan and Francis did not use her to evade detection and inspection by having her submit a single customs declaration form for the three of them, but in her name only.[7]

         The St. Thomas Cabin Searches (September 6, 2008)

         On the morning of September 6, 2008, after the travelers had returned to United States waters and had docked in St. Thomas, CBP Officers DeFelice, Demarais, Mazur, Santiago, and Torres (collectively, the St. Thomas Officers) inspected Bryan and Beberman's cabin, along with Francis's.

         The cabin searches each lasted between five and ten minutes.[8] The St. Thomas officers knocked on the cabin doors before opening them. The occupants were asked to get dressed without using the bathroom, and in at least partial view of the officers. They were then asked to leave their cabins and stand against a wall in the hallway. They waited in the hallway for between two and five minutes, while officers with a drug-sniffing dog inspected their cabins. Neither cabin search yielded any contraband; the St. Thomas Officers created TECS entries to that effect.[9]


         As a result of the searches, Beberman, Bryan, and Francis filed suit in the District Court for the Virgin Islands, asserting Fourth Amendment Bivens claims against Officer Ogg, who had recommended, but not participated in, the cabin searches and against the St. Thomas officers, who had executed the cabin searches. The travelers also asserted tort claims against the United States under the FTCA for invasion of privacy, false imprisonment, and intentional infliction of emotional distress.

         At the close of discovery, the officers and the United States moved for summary judgment. The District Court granted their motion on all claims.

         As for the officers, the District Court reasoned that neither Officer Ogg's entry of "lookouts" nor the St. Thomas cabin searches violated the travelers' Fourth Amendment rights. Further, it held that the officers were entitled to qualified immunity because their conduct did not violate clearly established Fourth Amendment rights.

         As for the United States, the District Court held that the FTCA claims were barred by the Act's ...

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