on May 22, 2018
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
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.
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
claimsagainst 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.
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.
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.
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
Creation of "Lookout" Entries by Officer Timothy
Ogg (September 5, 2008)
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 . .
.." 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
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." Both reports
urged personnel to alert special agents if they encountered
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.
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.
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
St. Thomas Cabin Searches (September 6, 2008)
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.
cabin searches each lasted between five and ten
minutes. 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.
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
close of discovery, the officers and the United States moved
for summary judgment. The District Court granted their motion
on all claims.
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.
the United States, the District Court held that the FTCA
claims were barred by the Act's ...