United States Court of Appeals 

For the First Circuit 

No. 16-2214 

DAVID PAGÁN-GONZÁLEZ, et al., 

Plaintiffs, Appellants, 

v. 

ANA MORENO, et al., 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge] 

Before 

Torruella, Lipez, and Barron, 

Circuit Judges. 

Osvaldo Carlo-Linares, with whom Carlo Law Office, LLC was on 

brief, for appellants. 

Joseph F. Busa, Attorney, Appellate Staff, Civil Division, 

U.S. Department of Justice, with whom Chad A. Readler, Acting 

Assistant Attorney General, Rosa Emilia Rodríguez-Vélez, United 

States Attorney, and Mark B. Stern, Attorney, Appellate Staff, 

Civil Division, U.S. Department of Justice, were on brief, for 

appellees. 

March 22, 2019 
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LIPEZ, Circuit Judge. This case requires us to consider 

the constitutional boundaries for the use of deception by law 

enforcement officers seeking consent for a warrantless search. We 

conclude that the search at issue here violated the Fourth 

Amendment because the circumstances -- including a lie that 

conveyed the need for urgent action to address a pressing threat 

to person or property -- vitiated the consent given by appellants. 

We further hold that the defendants are not entitled to qualified 

immunity from civil liability for the unlawful search because any 

reasonable officer would have recognized that the circumstances 

were impermissibly coercive. However, we reject a related claim 

alleging malicious prosecution on the ground that, even if it had 

merit, the defendants would be entitled to qualified immunity. 

We therefore vacate in part and affirm in part the 

district court's grant of defendants' motion to dismiss 

plaintiffs' complaint. 

I. Background 

 Appellant David Págan-González claims that his Fourth 

Amendment rights were violated when federal agents unlawfully 

searched his computer, and when they subsequently arrested and 

detained him on child pornography charges based solely on the 

evidence obtained in the unlawful search. After the criminal 

charges were dropped, Pagán-González brought this suit for damages 

pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau 
- 3 - 

of Narcotics, 403 U.S. 388 (1971).1 In Part A, we recount the 

largely undisputed facts of the underlying events, setting forth 

the complaint's well-pleaded facts in the light most favorable to 

the plaintiff. See Germanowski v. Harris, 854 F.3d 68, 69 (1st 

Cir. 2017); Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st 

Cir. 2011). In describing the objectives and conduct of the 

defendant law enforcement officers, we also rely on an affidavit 

submitted by one of the agents in support of the criminal complaint 

against Pagán-González.2 In Part B, we describe the Bivens action 

and the district court's rationales for dismissing it. 

A. The Challenged Conduct and Criminal Process 

 On October 23, 2013, approximately ten federal agents 

appeared at the door of the home shared by Pagán-González and his 

 1 A Bivens claim is an implied cause of action for civil 

damages against federal officials that we treat for qualified 

immunity purposes as equivalent to the statutory cause of action 

against state officials provided by 42 U.S.C. § 1983. See 

Hernandez-Cuevas v. Taylor, 723 F.3d 91, 93 n.1 (1st Cir. 2013); 

see also Pearson v. Callahan, 555 U.S. 223, 238 n.1 (2009) (noting 

parenthetically that "the Court's decisions equate the qualified 

immunity of state officials sued under 42 U.S.C. § 1983 with the 

immunity of federal officers sued directly under the Constitution" 

in a Bivens action (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 

& n.30 (1982)). 

2 The criminal complaint and affidavit were attached as 

exhibits to appellant's civil complaint. See, e.g., Foley v. Wells 

Fargo Bank, N.A., 772 F.3d 63, 72 (1st Cir. 2014) (stating that, 

in reviewing a motion to dismiss for failure to state a claim, 

courts consider "the complaint, documents attached to it, and 

documents expressly incorporated into it"). 

 
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parents in Cabo Rojo, Puerto Rico. Special Agent Ana Moreno, one 

of two officers named as defendants,3 identified herself as an FBI 

agent and reported that the law enforcement officers were there 

because a modem in a computer at the house was "sending a signal 

and/or viruses to computers in Washington." In fact, an FBI agent 

had downloaded child pornography from a computer that agents 

believed was located at that address, and the agents had come to 

the home to investigate.

 The agents asked the family for consent to inspect their 

computers and said they would try to fix the modem that was sending 

transmissions to Washington. The agents explained that, if they 

could not make the repair, they would take the faulty computer and 

provide a replacement at the FBI's expense. Pagán-González, age 

21, and his parents signed consent forms authorizing the computer 

searches.

 After inspecting two computers, the agents told the 

family they needed to take Pagán-González's laptop. PagánGonzález's father protested because his son, a college student, 

needed the computer for his classes, but the agents told the family 

they could no longer "touch or access" the laptop because it 

 3 The second named officer, Agent Claudia I. Bonilla, signed 

the affidavit submitted with the criminal complaint. The civil 

complaint in this case also listed as defendants "Unknown Agents 

of the FBI and/or Federal Task Force 1 to 15," Moreno and Bonilla's 

husbands, and the two officers' conjugal partnerships. 
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contained evidence of a crime. The family was not told that the 

agents had determined that the laptop contained "possible child 

pornography in the form of graphics, videos, and search terms" -- 

-- as Agent Bonilla later reported in the affidavit for the 

criminal complaint. 

 The computer seized from Pagán-González was further 

examined by the FBI's Computer Analysis Response Team ("CART"). 

According to the CART report, the laptop contained numerous images 

and videos of minors engaged in sexually explicit conduct and also 

revealed that Pagán-González had both received from others and 

shared child pornography. Agent Bonilla thus prepared the criminal 

complaint alleging that Pagán-González had transported and 

received child pornography in violation of 18 U.S.C. § 2252(a)(1) 

and (2). On December 11, 2013, a magistrate judge issued a warrant 

for his arrest. 

 Early the next morning, December 12, Pagán-González and 

his parents were awakened when armed federal agents "burst into 

their home" to arrest Pagán-González. He remained in custody until 

his parents were able to post bond a week later. On January 9, 

2014, a federal grand jury indicted Pagán-González for the crimes 

charged in the criminal complaint. He subsequently filed a motion 

to suppress the evidence obtained from the search of his computer, 

arguing that the agents' misrepresentations about their 

investigative purpose limited or vitiated the consent given by the 
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family for examination of their computers. Pagán-González 

asserted that the deception rendered the search "unreasonable and 

illegal" and, hence, a violation of his Fourth Amendment rights. 

Instead of responding to the suppression motion, the government 

filed a motion to dismiss the case "[i]n the interests of justice."

B. The Bivens Action

 On December 12, 2014 -- exactly one year to the day after 

Pagán-González's arrest -- he and his parents filed this civil 

lawsuit.4 Pagán-González alleged that he consented to the 

officers' entry and search only because the agents stated that 

they were looking for the source of the "signal and/or viruses" 

that had been detected in Washington, D.C. Hence, the entry, 

search, and seizure of the computers violated the Fourth Amendment 

because they were "tainted by Defendants' lie about the true 

reason" of "why they were there" and "what they were looking for." 

The complaint also asserted that Pagán-González's arrest, 

detention, and indictment violated his Fourth and Fifth Amendment 

rights because federal authorities relied "exclusively" on the 

"illegally obtained evidence" from the search to support the 

charges against him. 

 4 For the sake of simplicity, we refer to the claims and 

arguments on appeal as if raised only by Pagán-González. However, 

his parents -- David Pagán-Albino and Isabel González-Torres -- and 

their conjugal partnership also are plaintiffs-appellants with 

respect to the search-related claim. 
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The defendants moved to dismiss the complaint for 

failure to state a claim. They argued that (1) any claim related 

to the search itself was time-barred, (2) the agents' entry to 

plaintiffs' home and search of their computers was lawful, and (3) 

the agents were in any event protected from liability for the entry 

and search by the doctrine of qualified immunity. With respect to 

Pagán-González's allegations of improper arrest, detention, and 

indictment -- which they characterized as a cause of action for 

malicious prosecution -- the defendants argued that the claim 

failed because the criminal charges were supported by probable 

cause and because "unjustified prosecution" does not give rise to 

a Bivens claim.5 The defendants' motion also challenged the 

factual adequacy of the claims, specifically with respect to Agent 

Bonilla's involvement in the search and Agent Moreno's involvement 

in the arrest and prosecution.

 The district court dismissed the complaint in its 

entirety. See González v. Moreno, 202 F. Supp. 3d 220 (D.P.R. 

 5 In their motion to dismiss, the defendants observed that 

Pagán-González appeared to invoke only the Fifth Amendment as the 

basis for the malicious prosecution claim. The district court, 

however, viewed the malicious prosecution allegations to assert 

both Fourth and Fifth Amendment violations, but then found that 

the claim was cognizable only under the Fourth Amendment. See 

González v. Moreno, 202 F. Supp. 3d 220, 225 n.3 (D.P.R. 2016) 

(citing Hernandez-Cuevas, 723 F.3d at 94). On appeal, neither 

party protests the court's approach to the malicious prosecution 

claim; accordingly, we limit our analysis to the Fourth Amendment. 
- 8 - 

2016). The court held that the Fourth Amendment claim alleging 

that the agents unlawfully entered plaintiffs' home and searched 

their computers accrued on the day those acts occurred, October 

23, 2013. Accordingly, it rejected that claim as time-barred 

because the suit was filed more than a year later, on December 12, 

2014 -- i.e., outside the applicable one-year limitations period. 

Id. at 224. The court treated as timely Pagán-González's claim 

based on his arrest and the subsequent criminal process, but 

dismissed that claim as well because "the complaint is devoid of 

any allegations that would support a finding of lack of probable 

cause" for the charges brought against him. Id. at 226. 

Alternatively, the court concluded that the complaint did not 

provide a sufficient factual foundation to link the named 

defendants, Moreno and Bonilla, to the post-search criminal 

process underlying the malicious prosecution claim. See id. at 

226-27. 

 In rejecting the claims, the district court commented 

that it was "appalled at the allegations that FBI agents would ask 

to enter [Pagán-González's] home without a warrant, and through a 

ruse, obtain consent from all family members to search and seize 

[his] laptop." Id. at 227. Nonetheless, it found meritless 

"[p]laintiffs' contention that any evidence obtained in violation 

of [Pagán-González's] constitutional rights would negate the 

probable cause found in this case." Id. Noting that the 
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exclusionary rule does not apply in civil cases, the court cited 

precedent holding that, in the context of a civil malicious 

prosecution claim, the reliance on unlawfully obtained evidence 

does not "nullify the officers' probable cause to arrest." Id. 

(quoting Medina v. Toledo, 718 F. Supp. 2d 194, 207 (D.P.R. 2010), 

aff'd sub nom. Moreno-Medina v. Toledo, 458 Fed. App'x 4 (1st Cir. 

2012)). 

C. The Appeal

 On appeal, Pagán-González challenges the district 

court's holdings on the statute of limitations, the viability of 

his malicious prosecution claim, and the agents' entitlement to 

qualified immunity. Specifically, Pagán-González asserts that the 

Fourth Amendment claim based on the officers' entry to his home 

and search of his computer was timely because it did not accrue 

until the day of his arrest. As for deficiencies in the factual 

allegations, Pagán-González maintains that he should have been 

allowed to conduct discovery to ascertain "[t]he specific 

participation of each agent" in the challenged conduct. He also 

argues that the malicious prosecution claim should proceed because 

initiating and prosecuting criminal charges premised solely on 

illegally seized evidence violates the Constitution, and a 

reasonable officer would have understood as much. 

Appellate review of a district court's grant of a motion 

to dismiss is de novo. Giragosian v. Bettencourt, 614 F.3d 25, 28 
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(1st Cir. 2010). We begin that review in Section II with the 

district court's ruling on the search-related Fourth Amendment 

claim. In Section III, we address the dismissal of the malicious 

prosecution claim. 

II. The Entry to the Home and the Computer Search

A. Statute of Limitations

 State law determines the statute of limitations for a 

federal civil rights cause of action, see Barrett ex rel. Estate 

of Barrett v. United States, 462 F.3d 28, 38 (1st Cir. 2006), and 

it is undisputed that Puerto Rico's one-year limitations period 

for personal injury actions applies here, see Roman v. Townsend, 

224 F.3d 24, 29 (1st Cir. 2000) (noting "the settled proposition" 

that plaintiffs' Bivens claim was subject to Puerto Rico's oneyear limitations period). The accrual date for such claims, 

however, is governed by federal law. "Under federal law, the 

statute of limitations on a Bivens claim begins to run when the 

plaintiff knows or has reason to know of the existence and cause 

of the injury which is the basis of his action." Barrett, 462 

F.3d at 38-39 (quoting Van Tu v. Koster, 364 F.3d 1196, 1199 (10th 

Cir. 2004)). 

 Pagán-González argues that the district court erred in 

finding that the entry-and-search claim accrued when the officers 

took those actions. We agree. On the day of the search, PagánGonzález and his parents were told that the agents needed to enter 
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their home and inspect their computers to address a virus or signal 

that was detected by authorities in Washington, D.C. They neither 

knew that day, nor had reason to know, that the agents had 

misrepresented their purpose and elicited consent to search based 

on a falsehood.6 Although they were told that evidence of a crime 

had been found on Pagán-González's laptop, they could not have 

known that the evidence related to a crime committed by PagánGonzález or to a matter other than the one the agents had 

identified as the reason they needed to search. 

Hence, only when the agents returned on December 12 to 

arrest Pagán-González on the child pornography charges did he and 

his parents "know of the existence and cause of the injury which 

is the basis of [the] action." Barrett, 462 F.3d at 39 (quoting 

Van Tu, 364 F.3d at 1199). In other words, not until the real 

purpose for the agents' actions was revealed could Pagán-González 

understand that the agents had deliberately misled him to elicit 

consent for a warrantless search -- a tactic he claims invalidated 

his acquiescence. The limitations period starts running "one day 

after the date of accrual," Centro Medico del Turabo, Inc. v. 

Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005), and thus the 

 6 Agent Bonilla's affidavit states that, during the agents' 

first visit to his home, Pagán-González acknowledged that "he would 

download and exchange images and videos of minors engaging in 

sexual activity." However, Pagán-González has denied making that 

admission, and, taking the facts in the light most favorable to 

him, we disregard the asserted admission in assessing the claims. 
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limitations period for Pagán-González's search-based claim began 

to run on December 13, 2013. Accordingly, the claim -- filed on 

December 12, 2014, the one-year anniversary of his arrest -- was 

timely. 

B. The Merits and Qualified Immunity 

 Defendants argue that dismissal of the search-related 

claim should be upheld on the alternative ground that the ruse 

used by the officers was constitutionally permissible.7 And, they 

say, "at the very least, the defendants are shielded from civil 

liability by qualified immunity." Both of those rationales are in 

fact components of the qualified immunity analysis. "[O]fficers 

are entitled to qualified immunity under § 1983 unless (1) they 

violated a federal statutory or constitutional right, and (2) the 

unlawfulness of their conduct was 'clearly established at the 

time.'" Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) 

(emphasis added) (quoting Reiche v. Howards, 566 U.S. 658, 664 

(2012)). Because we conclude that the officers' deception 

invalidated the consent given for their warrantless entry and 

search, thus rendering those actions unlawful, we must also 

 7 Pagán-González appears to have appealed only the statuteof-limitations ruling on the search claim. However, the government 

makes no waiver argument concerning the merits and, indeed, it 

urges us to find in its favor on the validity of the search. We 

may affirm the dismissal on any ground supported by the record, 

see, e.g., Flores v. OneWest Bank, F.S.B., 886 F.3d 160, 164 (1st 

Cir. 2018), and, accordingly, we discuss the merits. 
- 13 - 

consider the second prong of the inquiry: whether the defendants 

are nonetheless entitled to qualified immunity because no 

reasonable officer would have understood that her conduct violated 

the Fourth Amendment. See Hill v. Walsh, 884 F.3d 16, 21 (1st 

Cir. 2018) (citing Wesby, 138 S. Ct. at 589). 

1. The Consent Exception to the Warrant Requirement 

 The sanctity of the home is at the core of the Fourth 

Amendment's protection against unreasonable governmental 

intrusions. See Payton v. New York, 445 U.S. 573, 585 (1980) 

("[T]he 'physical entry of the home is the chief evil against which 

the wording of the Fourth Amendment is directed.'" (quoting United 

States v. U.S. Dist. Court, 407 U.S. 297, 313 (1972))). The 

Supreme Court has thus "consistently held that the entry into a 

home to conduct a search or make an arrest is unreasonable under 

the Fourth Amendment unless done pursuant to a warrant." Steagald 

v. United States, 451 U.S. 204, 211 (1981). Longstanding 

precedent, however, carves out an exception to the warrant 

requirement for consensual searches. See, e.g., Schneckloth v. 

Bustamonte, 412 U.S. 218, 219 (1973); United States v. Coombs, 857 

F.3d 439, 448 (1st Cir. 2017). As one court has noted, "[a] 

validly obtained and voluntary consent renders a search or seizure 

reasonable, thus eliminating the need for a warrant." United 

States v. Parson, 599 F. Supp. 2d 592, 601 (W.D. Pa. 2009). 

 The Supreme Court has described consent as a "'jealously 
- 14 - 

and carefully drawn' exception" to the warrant requirement. 

Georgia v. Randolph, 547 U.S. 103, 109 (2006) (quoting Jones v. 

United States, 357 U.S. 493, 499 (1958)). The government thus 

fittingly bears the burden to prove valid, voluntary consent, see 

Schneckloth, 412 U.S. at 222; United States v. Vázquez, 724 F.3d 

15, 18 (1st Cir. 2013), and courts evaluate voluntariness in this 

context with the same close scrutiny of the circumstances 

prescribed by the Supreme Court for assessing the voluntariness of 

a confession, see Schneckloth, 412 U.S. at 226-27; Coombs, 857 

F.3d at 449. That totality-of-the-circumstances review must take 

into account, where appropriate, "any evidence that law 

enforcement officers' fraud, deceit, trickery or misrepresentation 

prompted defendant's acquiescence to the search." United States 

v. Vanvliet, 542 F.3d 259, 264 (1st Cir. 2008); see also, e.g., 

United States v. Spivey, 861 F.3d 1207, 1213 (11th Cir. 2017) 

("Deceit can . . . be relevant to voluntariness."); Vázquez, 724 

F.3d at 19 (stating that courts must consider whether law 

enforcement officers' misrepresentations prompted defendant's 

consent to the search).8

 8 We have observed that other 

[f]actors relevant to voluntariness may 

include, but are not limited to: (i) the 

consenter's age, education, past experiences, 

and intelligence; (ii) whether law enforcement 

officials advised the consenter of his 

constitutional right to refuse consent; (iii) 
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 Thus, to find the search lawful as the government urges, 

we must conclude that the consent to enter and search given by 

Pagán-González and his parents to the FBI agents was "validly 

obtained and voluntary" notwithstanding the agents' deception 

concerning their purpose. Parson, 599 F. Supp. 2d at 601. Before 

evaluating the particular facts here, we describe the existing 

case law on the use of deception by law enforcement officers, 

including to obtain consent. 

 2. Deception by Government Authorities

i. General Principles 

It is beyond debate that deception is a well-established 

and acceptable tool of law enforcement. See, e.g., Sorrells v. 

United States, 287 U.S. 435, 441 (1932) ("Artifice and stratagem 

may be employed to catch those engaged in criminal enterprises."). 

Indeed, undercover investigations in which government agents 

misrepresent their identities are ubiquitous and viewed as 

essential in the detection of crime. See, e.g., Lewis v. United 

States, 385 U.S. 206, 208-09 (1966) ("[I]t has long been 

acknowledged by the decisions of this Court that, in the detection 

of many types of crime, the Government is entitled to use decoys 

 

the length and conditions of the consenter's 

detention and/or questioning; and (iv) law 

enforcement officials' use of any inherently 

coercive tactics. 

Vanvliet, 542 F.3d at 264 n.2. 
- 16 - 

and to conceal the identity of its agents." (citations and footnote 

omitted)); id. at 210 (noting that a prohibition on the use of 

undercover agents would "severely hamper the Government in 

ferreting out those organized criminal activities that are 

characterized by covert dealings with victims who either cannot or 

do not protest").9 The right to deceive, however, is not unbounded. 

"The various protections of the Bill of Rights . . . provide checks 

upon such official deception for the protection of the individual." 

Id. at 209. 

 Consistent with the precedent described above, one such 

limitation is that government agents' deceptive tactics must not 

 9 We note that, despite widespread acceptance, not everyone 

agrees that nondisclosure or an affirmative misrepresentation of 

a police officer's identity is compatible with a finding that the 

unknowing or deceived defendant acted voluntarily in interacting 

with law enforcement. See 2 Wayne R. LaFave et al., Criminal 

Procedure § 3.10(c) (4th ed. 2017): 

Though some consider even Lewis as 

objectionable on the ground that we should 

"regard deliberate deception about an 

obviously material -- indeed controlling -- 

fact as inconsistent with voluntariness," a 

more appropriate concern is that of keeping 

the above-stated principle within reasonable 

bounds. One attractive proposal is that 

permissible deception by a stranger must 

include a stated intention on his part to join 

the consenting party in criminal activity, for 

in that way innocent persons will be spared 

from intrusions upon their privacy by 

deception. 

(Footnotes omitted.) 
- 17 - 

prevent a target from making "an essentially free and unconstrained 

choice" to forgo the constitutional protection of a warrant. 

Schneckloth, 412 U.S. at 225. In perhaps the most familiar 

undercover scenario -- a law enforcement officer posing as a drug 

buyer to gain entry to a home or hotel room -- the deception is 

deemed acceptable under the Fourth Amendment because the targeted 

seller has freely made the choice to expose his criminal activity 

to others. That is, he has voluntarily assumed the risk of 

inviting individuals whom he knows he cannot control into his 

residence. See Hoffa v. United States, 385 U.S. 293, 303 (1966) 

("The risk of being . . . deceived as to the identity of one with 

whom one deals is probably inherent in the conditions of human 

society. It is the kind of risk we necessarily assume whenever we 

speak." (quoting Lopez v. United States, 373 U.S. 427, 465 (1963) 

(Brennan, J., dissenting))); see also id. at 302 ("Neither this 

Court nor any member of it has ever expressed the view that the 

Fourth Amendment protects a wrongdoer's misplaced belief that a 

person to whom he voluntarily confides his wrongdoing will not 

reveal it."); cf. Lewis, 385 U.S. at 211 ("A government agent, in 

the same manner as a private person, may accept an invitation to 

do business and may enter upon the premises for the very purposes 

contemplated by the occupant."). 

 The dynamic is meaningfully different, however, when 

police officers identify themselves as such but misrepresent their 
- 18 - 

purpose. Because citizens will respond to law enforcement with a 

sense of obligation and presumption of trustworthiness, multiple 

courts have held facially consensual searches to be invalid where 

the "consent" was elicited through officers' lies about the nature 

or scope of their investigations. See, e.g., United States v. 

Bosse, 898 F.2d 113, 115 (9th Cir. 1990) (per curiam) (invalidating 

consent where federal agent investigating possible firearms 

violations was depicted as a state licensing official: "A ruse 

entry when the suspect is informed that the person seeking entry 

is a government agent but is misinformed as to the purpose for 

which the agent seeks entry cannot be justified by consent."); id. 

at 115 (stating that "entry . . . acquired by affirmative or 

deliberate misrepresentation of the nature of the government's 

investigation" violates the Fourth Amendment (quoting United 

States v. Little, 753 F.2d 1420, 1438 (9th Cir. 1984))); SEC v. 

ESM Gov't Sec., Inc., 645 F.2d 310, 316-18 (5th Cir. Unit B May 

1981) (holding that federal agent's deliberate, effective 

misrepresentation of purpose to gain access to records would be 

impermissible: "When a government agent presents himself to a 

private individual, and seeks that individual's cooperation based 

on his status as a government agent, the individual should be able 

to rely on the agent's representations."); United States v. Tweel, 

550 F.2d 297, 300 (5th Cir. 1977) (finding consent vitiated by 

misrepresentation that investigation was civil, not criminal); 
- 19 - 

Parson, 599 F. Supp. 2d at 608 (finding government's burden to 

show voluntary consent unmet where, inter alia, agents 

investigating child pornography gained entry and searched a 

computer after advising the defendant he might be a victim of 

identity theft); People v. Daugherty, 514 N.E.2d 228, 233 (Ill. 

App. Ct. 1987) ("Where, as here, the law enforcement officer 

without a warrant uses his official position of authority and 

falsely claims that he has legitimate police business to conduct 

in order to gain consent to enter the premises when, in fact, his 

real reason is to search inside for evidence of a crime, we find 

that this deception under the circumstances is so unfair as to be 

coercive and renders the consent invalid."); cf. United States v. 

Watzman, 486 F.3d 1004, 1007 (7th Cir. 2007) (noting that 

government did not challenge finding that search was invalid where 

officers conducted a "phony 'burglary follow-up'" ruse to 

investigate child pornography); United States v. Turpin, 707 F.2d 

332, 334 (8th Cir. 1983) (upholding lawfulness of consent search, 

but stating that "[m]isrepresentations about the nature of an 

investigation may be evidence of coercion"). 

 Courts troubled by agents' lies about the searches they 

seek to conduct have worried that condoning such falsehoods "would 

obliterate citizens' widely shared social expectations that they 

may place some modicum of trust in the words of government 

officials acting as such," with that lack of trust producing
- 20 - 

"catastrophic consequences." Parson, 599 F. Supp. 2d at 606. In 

a passage quoted multiple times by other courts, the Fifth Circuit 

observed that private individuals have "the right to expect that 

the government, when acting in its own name, will behave 

honorably." ESM Gov't Sec., Inc., 645 F.2d at 316. In particular, 

the court stated, "[w]e think it clearly improper for a government 

agent to gain access . . . which would otherwise be unavailable to 

him by invoking the private individual's trust in his government, 

only to betray that trust." Id.; see also Parson, 599 F. Supp. 2d 

at 606 ("Society expects that law enforcement officers who present 

themselves and show badges will be honest and forthright with the 

community that they serve."). 

 Yet, despite the broadly framed objections of courts to 

deception by known government agents, the general consensus in the 

case law is that such deception, including lying about the purpose 

of an investigation, is not categorically off-limits in obtaining 

consent to search.10 The question instead is whether the deception 

 10 Multiple commentators, however, have questioned the 

constitutional validity of officer deception about purpose in 

seeking consent to search. See, e.g., Laurent Sacharoff, Trespass 

and Deception, 2015 B.Y.U. L. Rev. 359, 364 (2015) (relying on 

Supreme Court's trespass analysis in recent Fourth Amendment cases 

to propose that "when a person lies about her identity and purpose 

to obtain consent to enter private property, that deception 

vitiates consent, thereby transforming the entry into a 

trespass"); id. at 366-67 (stating that police deception should 

fall within this rule); William E. Underwood, Note, A Little White 

Lie: The Dangers of Allowing Police Officers to Stretch the Truth 

as a Means to Gain a Suspect's Consent to Search, 18 Wash. & Lee 
- 21 - 

in context rendered the consent involuntary. In a recent Eleventh 

Circuit decision, for example, the court acknowledged that "fraud, 

deceit or trickery in obtaining access to incriminating evidence 

can make an otherwise lawful search unreasonable," Spivey, 861 

F.3d at 1214 (quoting United States v. Prudden, 424 F.2d 1021, 

1032 (5th Cir. 1970)) (emphasis added in Spivey), but cautioned 

that deception by officers relying on their status as government 

agents "does not always invalidate consent," id.; see also id. at 

1215 (stating that the ruse used by officers "was a relatively 

minor deception that created little, if any, coercion"). See also, 

e.g., People v. Zamora, 940 P.2d 939, 943 (Colo. App. 1996) 

(upholding trial court's finding of consent "[a]lthough the 

officers may have partially misrepresented their purpose by not 

disclosing they were investigating a rape rather than a domestic 

dispute"). 

Spivey, in which one panel member dissented,11 provides 

 

J. Civ. Rts. & Soc. Just. 167, 206 (2011) (proposing, as a 

"workable rule," that when police officers identify themselves as 

such, they "must fully inform the suspect of the main purpose of 

their visit in order to validly obtain any consent to search" 

(emphasis omitted)); Rebecca Strauss, Note, We Can Do This the 

Easy Way or the Hard Way: The Use of Deceit to Induce Consent 

Searches, 100 Mich. L. Rev. 868, 882 (2002) (stating that "courts 

should consider deceit as coercion," and, "[s]ince coercion 

negates consent, police deception should negate any resulting 

consent"). 

11 The Supreme Court denied certiorari in the case. See Spivey 

v. United States, No. 17-7046, 2018 WL 2767783 (U.S. June 11, 

2018). 
- 22 - 

a useful illustration of the other considerations that may come 

into play in assessing the impact of deception by known government 

agents. There, a pair of defendants sought to suppress evidence 

of credit card fraud found at their home on the ground that the 

searching officers had obtained consent to search by falsely 

claiming to be following up on two burglaries the defendants had 

reported. See 861 F.3d at 1210. In reality, the burglar already 

had been caught, and he had told the police about the fraud 

evidence he had seen at the defendants' home. Id. at 1210-11. 

Despite the officers' misrepresentation of their 

purpose, the panel majority upheld the district court's finding 

that the consent to search was voluntary. The majority emphasized 

that one of the defendants had "made a strategic choice to report 

the burglary and to admit the officers into her home." Id. at 

1211. In those circumstances, the judges explained, it was not 

"clear error for the district court to find that, although the 

burglary investigation was 'not the main or real reason' for the 

search, it was 'a legitimate reason for being there.'" Id. at 

1214. And, importantly, the consenting defendant "understood that 

she faced a risk that [the law enforcement agent] would notice 

evidence of the credit-card fraud." Id. at 1215; see also id. at 

1216 ("Austin and Spivey informed the police of the burglaries and 

invited their interaction. The officers did not invent a false 

report of a burglary, nor claim any authority that they lacked."). 
- 23 - 

ii. Consensus on Impermissibly Coercive Deception

Notwithstanding the need in each case to consider the 

totality of the circumstances, there is consensus in the precedents 

that two types of deception have an impermissibly coercive effect. 

First, the Supreme Court has soundly rejected the consent to search 

obtained by officers who falsely claim they have a warrant. See 

Bumper v. North Carolina, 391 U.S. 543, 550 (1968). That 

situation, the Court explained, is "instinct with coercion" 

because the officer "announces in effect that the occupant has no 

right to resist the search." Id. It is thus well established, in 

our own law and elsewhere, that "deception invalidates consent 

when police claim authority they lack." Spivey, 861 F.3d at 1213; 

see also, e.g., Vázquez, 724 F.3d at 22 ("The law is clear . . . 

that consent to a search is invalid if given only because of an 

officer's knowingly false assurance that there will soon be a 

lawful search anyway." (citing Bumper)); Hadley v. Williams, 368 

F.3d 747, 749 (7th Cir. 2004) (stating that consent was "vitiated 

not only by the claim of the police to have a warrant . . . but 

also by fraud," and explaining that the consent "was procured by 

an outright and material lie [that the police had a warrant], and 

was therefore ineffectual"). 

Second, relying on equivalent reasoning, courts have 

regularly held that coercion is implicit when officers falsely 

present a need for urgent action: "[W]hen an officer lies about 
- 24 - 

the existence of exigent circumstances, he also suggests that the 

occupant has no right to resist and may face immediate danger if 

he tries." Spivey, 861 F.3d at 1213 (citing United States v. 

Harrison, 639 F.3d 1273 (10th Cir. 2011), where "agents falsely 

implied that a bomb was planted in the apartment they sought to 

search"); see also United States v. Montes-Reyes, 547 F. Supp. 2d 

281, 291 (S.D.N.Y. 2008) (finding lack of consent where officers 

falsely stated they sought entry to hotel room to search for a 

missing girl, but planned to search for drugs, because police 

fabricated a "grave emergency"); Krause v. Commonwealth, 206 

S.W.3d 922, 926 (Ky. 2006) (finding coercion where officers 

obtained consent to search a residence based on a false report 

that a young girl claimed she had been raped at that location); 

People v. Jefferson, 350 N.Y.S.2d 3, 4 (N.Y. App. Div. 1973) (per 

curiam) (finding that "the ruse [of a possible gas leak] used by 

the police to gain access to the apartment and therefore the 

subsequent search and arrests were violative of defendant's 

constitutional rights"); cf. United States v. Hardin, 539 F.3d 

404, 424-25 (6th Cir. 2008) (finding that consent would be invalid 

where apartment manager, acting at behest of police, entered 

apartment purportedly to investigate a non-existent water leak); 

Zamora, 940 P.2d at 943 (finding valid consent, but noting that 

"[t]he police did not feign an emergency, conceal their identities, 
- 25 - 

or misrepresent their authority").12

Beyond the coercion inherent in the false emergency 

scenario, multiple courts have emphasized "the potential public 

policy hazard created when police officers make false claims of 

exigent circumstances." Montes-Reyes, 547 F. Supp. 2d at 288 n.10. 

In order to ensure cooperation in truly lifethreatening situations, it is vital to 

maintain the public trust in emergency 

services. When the police or the gas company 

come to the door warning of a real gas leak or 

other life-threatening emergency, it is in 

everyone's interest that they be believed. 

Sanctioning the type of deception engaged in 

here [phony gas leak] would send a message to 

all those with reason to fear "the system" 

(whether they be law abiding or law breaking) 

that emergency warnings cannot be trusted. 

United States v. Giraldo, 743 F. Supp. 152, 154 (E.D.N.Y. 1990) 

(quoted in Montes-Reyes, 547 F. Supp. 2d at 288 n.10)13; see also 

 12 In United States v. Wei Seng Phua, the court addressed 

circumstances that it acknowledged did not rise to the level of 

exigent because the agents "did not lie about an emergency or lifethreatening situation." 100 F. Supp. 3d 1040, 1051 (D. Nev. 2015). 

The agents there had cut off internet service to a hotel room and 

then posed as repairmen so they could search for evidence of an 

illegal sports betting operation. Id. at 1045. Nonetheless, the 

court found that the consent given was invalid. Noting the 

widespread use of cable, telephone, and internet services, the 

court concluded that "policy concerns also weigh against allowing 

the government to use a ruse of this type." Id. at 1052. It 

observed that "[m]ost reasonable people would invite a third party 

repair person into their home if they were led to believe it was 

necessary to fix a problem with those services." Id. Wei Seng 

Phua also differs from the cases described above, of course, 

because the government agents disguised their identities. 

13 In Giraldo, the agents were disguised as gas company 

employees. 
- 26 - 

Krause, 206 S.W.3d at 926 (stating that, if the court sanctioned 

ruse of false report of young girl's rape, "citizens would be 

discouraged from 'aiding to the utmost of their ability in the 

apprehension of criminals' since they would have no way of knowing 

whether their assistance was being called upon for the public good 

or for the purpose of incriminating them" (quoting Schneckloth, 

412 U.S. at 243)). This exigent circumstances extension of "the 

Bumper coercion principle" is widely recognized. Laurent 

Sacharoff, Trespass and Deception, 2015 B.Y.U. L. Rev. 359, 381-

82 (discussing the "line of cases" in which "police lie in such a 

way that the resident feels no choice but to allow the search"); 

see also 4 Wayne R. LaFave, Search and Seizure: A Treatise on the 

Fourth Amendment § 8.2(n) (5th ed. 2017) (noting that "[t]he 

critical fact in Jefferson [the gas leak ruse] . . . was that the 

police in effect deprived the defendant of a free choice in 

deciding whether to surrender his privacy, for they made it falsely 

appear that a failure to permit entry might result in injury to 

persons and property"); Montes-Reyes, 547 F. Supp. 2d at 287-88 

(noting "universal[] agree[ment]" that consent is invalid when 

officers give "the impression that . . . consent cannot be lawfully 

withheld," and noting cases finding involuntariness when officers 

invoke "dire or otherwise exigent circumstances" to suggest that 

"consent to search was required to prevent a[n] impending 

calamity"). 
- 27 - 

Thus, to sum up, while the fact-specific nature of the 

voluntariness inquiry makes it difficult to draw many bright lines 

"within this murky area of law concerning consents [to search] 

obtained by deception as to purpose," 4 Search & Seizure, supra, 

§ 8.2(n), courts have uniformly recognized that the Fourth 

Amendment may be violated when consent is obtained through a law 

enforcement officer's false claim of authority or lies conveying 

an exigent need for the search. In such instances, the deception 

may be sufficient on its own to vitiate the voluntariness of the 

resulting "consent." See Bumper, 391 U.S. at 548-49 (stating that 

the government's burden of proving that consent was "freely and 

voluntarily given" "cannot be discharged by showing no more than 

acquiescence to a claim of lawful authority"); see also 4 Search 

& Seizure, supra, § 8.2(a) (noting that "[o]ne factor very likely 

to produce a finding of no consent under the Schneckloth 

voluntariness test is an express or implied false claim by the 

police that they can immediately proceed to make the search in any 

event" (footnotes omitted)); 2 Wayne R. LaFave et al., Criminal 

Procedure § 3.10(c) (4th ed. 2017) (observing that consent obtained 

by means of "extreme" misrepresentations that allow no meaningful 

option to refuse "should not be considered valid"). Indeed, the 

government in this case recognizes these two categories of cases 

in which the deception is incompatible with consent. See 

Appellee's Br. at 15, 16 (recognizing (1) inherent coercion when 
- 28 - 

officer falsely asserts that suspect has no right to refuse the 

search and that (2) "an officer may not use a ruse that, if it 

were true, would give the suspect no real choice but to consent").

 3. The Challenged Search 

 Against the backdrop of the law described above, and 

mindful of "the demanding scrutiny required by the Schneckloth 

court" in assessing consent, United States v. Twomey, 884 F.2d 46, 

51 (1st Cir. 1989), we have little difficulty concluding that the 

entry and search as alleged in Pagán-González's complaint violated 

the Fourth Amendment.14 Roughly ten FBI agents appeared at 

appellant's door with the alarming news that computers in 

Washington, D.C. -- the heart of the country's political and 

military operations15 -- were receiving signals or viruses from a 

computer at appellant's location. If the report of a virus 

infecting technology in the nation's capital was not itself enough 

to convey an urgent need to address a pressing threat, the show of 

 14 The voluntariness of appellant's consent is, of course, a 

fact-based inquiry properly conducted by the district court in the 

first instance. See, e.g., Vanvliet, 542 F.3d at 264. 

Accordingly, our discussion addresses only the viability of the 

Fourth Amendment claim as alleged -- i.e., whether the facts of 

the search as depicted in the complaint show a Fourth Amendment 

violation and, if so, whether the defendants are entitled to 

qualified immunity.

15 As plaintiffs noted in their opposition to defendants' 

motion to dismiss, the agents' statement about viruses affecting 

computers in "Washington" was an "obvious reference to Government 

computers." Pagán-González v. Moreno, Civ. No. 3:14-01899 (GAG), 

Dkt. No. 25, at 20 (filed Nov. 2, 2015). 
- 29 - 

force by the federal agents elevated the seriousness of the 

situation and communicated that the problematic computer posed a 

substantial threat -- perhaps even to the nation's security. 

 To be sure, the fabricated emergency was not one that 

presented an immediate threat to the personal safety of PagánGonzález, his parents, or any particular individual -- as would a 

gas leak or a bomb. See supra Section II.B.2.ii. However, we 

reject the government's suggestion that a finding of coercion based 

on fabricated exigent circumstances is limited to lies about an 

imminent physical danger or "a time-critical investigation 

involving the well-being of a vulnerable person." There is nothing 

fanciful about the havoc that could be wreaked by a computer attack 

on the federal government. By late 2013, when the conduct at 

issue here occurred, cyber security was a major concern within the 

FBI itself, and the serious threat posed by cyberattacks also was 

public knowledge. In March 2012, for example, the FBI's then-top 

official on cybercrime stated that terrorist groups were 

"increasingly . . . seeking to use the network to challenge the 

United States by looking at critical infrastructure to disrupt or 

harm the viability of our way of life." FBI, Interview with Shawn 

Henry, https://www.fbi.gov/news/stories/the-cyber-threat (March 

27, 2012). An executive order issued by the White House in 

February 2013 likewise warned that "[t]he cyber threat to critical 

infrastructure continues to grow and represents one of the most 
- 30 - 

serious national security challenges we must confront." Exec. 

Order No. 13636, Improving Critical Infrastructure Cybersecurity, 

78 Fed. Reg. 11,739 (Feb. 12, 2013), 2013 WL 596302. Public news 

accounts included a New York Times story in March 2013 reporting 

that the nation's top intelligence official "suggested that such 

attacks now pose the most dangerous immediate threat to the United 

States, even more pressing than an attack by global terrorist 

networks." Mark Mazzetti & David E. Sanger, "Security Leader Says 

U.S. Would Retaliate Against Cyberattacks," NY Times (Mar. 12, 

2013), https://www.nytimes.com/2013/03/13/us/intelligenceofficial-warns-congress-that-cyberattacks-pose-threat-tous.html. 

In addition, the severity of the purported threat in 

this instance was made plain by the number of agents dispatched to 

address it. Both of these factors -- the claimed threat and the 

significant show of force -- are consequential in assessing the 

voluntariness of Pagán-González's consent to enter and search. 

See 4 Search & Seizure, supra, § 8.2(b) ("It is significant 

. . . that consent has been obtained while the consenting party 

was confronted by many police officers."); 2 Criminal Procedure, 

supra, § 3.10(c) (stating that consent "should not be considered 

valid" when the fabricated scenario is "so extreme" that the 

individual cannot fairly assess "the need to surrender his 

privacy"). 
- 31 - 

 Nor do other factors diminish the coerciveness of these 

aspects of the encounter. Pagán-González's education and family 

support might have enabled him to resist some types of official 

deception, cf., e.g., Parson, 599 F. Supp. 2d at 607 (noting, inter 

alia, that target of identity theft ruse was a 65-year-old with 

medical issues, including limited ability to see, and was living 

alone on a low fixed income), but not the sort of fabricated 

emergency created by the officers in this case. This was not a 

situation in which government agents were merely offering help to 

a private citizen. Unlike in Spivey, where the officers were 

responding to the defendants' request for help, or Parson, where 

the officers were purporting to protect the defendant from identity 

theft, the agents here relied on the predictable acquiescence of 

citizens to assist law enforcement when pressed to do so -- and in 

a situation where it reasonably could be inferred that national 

interests were at stake. See, e.g., Krause, 206 S.W.3d at 927 

("What distinguishes this case most, perhaps, from the bulk of 

other ruse cases is the fact that [the officer] exploited a 

citizen's civic desire to assist police in their official duties 

for the express purpose of incriminating that citizen."). 

In short, the totality of the circumstances as alleged 

point strongly to a situation involving "an unwitting, trusting 

beguilement," Spivey, 861 F.3d at 1216, in which PagánGonzález -- pressured by the urgency of the threat posed by the 
- 32 - 

ruse and intimidated by the agents' en masse arrival -- felt he 

had no choice but to allow the agents access to his home and 

computer. Viewing the allegations in the complaint favorably to 

the plaintiff, the government has not met its burden to prove 

voluntariness. See Schneckloth, 412 U.S. at 222; Vázquez, 724 

F.3d at 18. Absent valid consent, the warrantless entry to PagánGonzález's home, and the search and seizure of his computer, 

violated the Fourth Amendment. 

4. Qualified Immunity

Having concluded that the search as alleged violated the 

Constitution, we turn to the second prong of the qualified immunity 

inquiry: whether the unlawfulness of the agents' conduct was 

clearly established at the time they acted. See, e.g., Wesby, 138 

S. Ct. at 589. In assessing the clarity of the law, we look to 

"'controlling authority' or a 'consensus of cases of persuasive 

authority' sufficient to signal to a reasonable officer that 

particular conduct would violate a constitutional right." Morse 

v. Cloutier, 869 F.3d 16, 23 (1st Cir. 2017) (quoting Wilson v. 

Layne, 526 U.S. 603, 617 (1999)). A legal principle can be 

"clearly established" without factually identical precedent, 

although the existing case law must have placed the specific 

constitutional or statutory question "beyond debate." Mullenix v. 

Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Ashcroft v. 

al-Kidd, 563 U.S. 731, 741 (2011)). Put another way, the law must 
- 33 - 

have been sufficiently clear that "any reasonable official in the 

defendant's position would have known that the challenged conduct 

is illegal 'in the particular circumstances that he or she faced.'" 

Rivera-Corraliza v. Morales, 794 F.3d 208, 214-15 (1st Cir. 2015) 

(quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). Such 

precision ensures that government officials are "penalize[d] 

. . . for violating 'bright lines,' [but] not for making 'bad 

guesses in gray areas.'" Id. at 215 (quoting Maciariello v. Sumner, 

973 F.2d 295, 298 (4th Cir. 1992)). 

 The government argues that the defendants in this case 

are entitled to qualified immunity because there is no consensus 

on "what constitutes permissible deception in enforcing the 

criminal law." Appellee's Br. at 23 (quoting 4 Search & Seizure, 

supra, § 8.2(n)). Pointing out that the plaintiffs themselves 

have conceded that "there is no Supreme Court or First Circuit 

case forbidding agents from using a ruse," the government goes on 

to characterize this case as one in which "known officers 

misrepresent[ed] their investigative purpose and claim[ed] to be 

investigating one crime when they are really investigating 

another." Id. at 22. "[E]ven if some such ruses may be out of 

bounds," the government states, law enforcement officers cannot be 

expected to "identify[] the proscribed variety in advance." Id. at 

23. 

 But the question on which qualified immunity turns in 
- 34 - 

this case is not whether government agents ever may use a ruse to 

obtain consent for a warrantless search. Under current law, they 

clearly may. Hence, plaintiffs' "concession" that ruses have never 

been prohibited by the Supreme Court or our court is irrelevant to 

our inquiry. The government likewise misses the mark in pressing 

the lack of clarity on the lawfulness of ruses in which officers 

obtain consent by misrepresenting the crime they are 

investigating. Importantly, the deception that prompted PagánGonzález's consent was not simply a lie about the purpose of the 

agents' search, but it involved fabrication of an emergency. In 

other words, the facts as alleged implicate the narrow line of 

cases described above in Section II.B.2.ii. See Mullenix, 136 S. 

Ct. at 308 (observing that the clearly established "inquiry 'must 

be undertaken in light of the specific context of the case, not as 

a broad general proposition'" (quoting Brosseau v. Haugen, 543 

U.S. 194, 198 (2004) (per curiam) (quoting Saucier v. Katz, 533 

U.S. 194, 201 (2001))). The contrast with the facts underlying 

the Eleventh Circuit's decision in Spivey, where the majority found 

valid consent, is illustrative of this distinction. See 861 F.3d 

at 1210-11. There, the officers purported to be investigating 

burglaries at the request of the homeowners -- a scenario far 

different from the fabricated emergency precedent. 

Hence, the second-prong question we must address is 

whether the "robust 'consensus of cases'" on fabricated exigent 
- 35 - 

circumstances put the defendants on notice of the 

unconstitutionality of their particular ruse. al-Kidd, 563 U.S. 

at 742 (quoting Wilson, 526 U.S. at 617); see also Wesby, 138 S. 

Ct. at 590; Rivera-Corraliza, 794 F.3d at 214-15. Even more 

specifically, we must consider whether a reasonable law 

enforcement officer would have understood that the false report of 

a virus threatening computers in Washington, D.C., conveyed to 

Pagán-González at his home by a force of ten federal agents 

identified as such, was materially equivalent to the ruses in the 

fabricated emergency precedent and thus invalidated his consent to 

search. See generally Mullenix, 136 S. Ct. at 308 (emphasizing 

that "[t]he dispositive question is 'whether the violative nature 

of particular conduct is clearly established'" (quoting al-Kidd, 

563 U.S. at 742) (emphasis added in Mullenix)). 

 Essentially for the reasons leading us to conclude that 

Pagán-González's complaint states a claim for an unlawful search 

under the Fourth Amendment, we also hold that the virus ruse falls 

squarely within the "body of relevant case law" in which consent 

premised on a fabricated emergency was found invalid. Wesby, 138 

S. Ct. at 590 (quoting Brosseau, 543 U.S. at 199); see also City 

of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503-04 (2019) (per 

curiam). The clear and primary rationale of this line of precedent 

is that the consenting individual had no real option to deny access 

to his home or property because the threat depicted by law 
- 36 - 

enforcement agents was so imminent and consequential that only 

immediate access could prevent severe harm. In the "explosion" 

cases -- involving lies about bombs or a gas leak -- officers used 

the threat of personal harm and destruction of the individual's 

residence. See Harrison, 639 F.3d at 1276 (agents falsely reported 

receiving an anonymous phone call reporting bombs in the 

apartment); Giraldo, 743 F. Supp. at 153 (agents falsely reported 

possible gas leak); Jefferson, 350 N.Y.S.2d at 4 (officers falsely 

stated they were investigating a gas leak). In the cases involving 

young girls, the need to find a missing child or the accusation of 

a rape likewise presented scenarios where time was of the essence. 

See Montes-Reyes, 547 F. Supp. 2d at 291 (observing that "the 

'missing girl' ruse . . . created a false sense of exigent 

circumstances similar to that raised in a 'gas leak' scenario"); 

Krause, 206 S.W.3d at 926 (involving the fabricated need to search 

based on the "unnerving news [that] a young girl had just been 

raped"); cf. Zamora, 940 P.2d at 943 (noting, in finding consent 

valid where officers seeking perpetrator of thirteen-year-old's 

rape misrepresented their purpose as investigating a domestic 

dispute, that "[t]he police did not feign an emergency"). 

 No reasonable law enforcement officer could fail to 

understand the similar compulsion that is inherent in the lie used 

in this case. See Wesby, 138 S. Ct. at 590 (noting that, to meet 

the qualified immunity standard, "there does not have to be 'a 
- 37 - 

case directly on point,'" but it is necessary to "identify a case 

where an officer acting under similar circumstances . . . was held 

to have violated the Fourth Amendment" (quoting al-Kidd, 563 U.S. 

at 741; White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)). 

Indeed, the potential impact of the implied cyberattack carried 

out in part via Pagán-González's computer on the nation's capital 

was broader than the harms presented in the cases described above 

-- implicating national security -- and, as we have noted, the 

threat posed by such an attack was a well-known phenomenon by 2013. 

See supra Section II.B.3. 

Moreover, the precedent further makes plain that 

surrounding conditions can contribute to the coerciveness of the 

encounter. In Krause, for example, the court noted the "alarming" 

timing of the confrontation -- "[a] knock on the door at 4:00 a.m. 

by uniformed police officers" -- and the target's additional 

vulnerability because of the "heinous and shameful accusation" 

that someone in the residence had raped a young girl. 206 S.W.3d 

at 926. Here, the severity of the threat was clearly communicated 

to Pagán-González by the arrival on his doorstep of ten federal 

agents. 

Accordingly, every reasonable officer would have 

understood that the ruse used here, carried out in a manner that 

signified an emergency, would leave an individual with effectively 

no choice but to allow law enforcement officers inside his home so 
- 38 - 

they could attempt to alleviate the grave threat. And, in turn, 

a reasonable officer would have known that thus denying PagánGonzález a "free and unconstrained choice" to forgo the 

constitutional protection of a warrant was a violation of his 

Fourth Amendment rights. Schneckloth, 412 U.S. at 225. Indeed, 

as noted above, the government itself acknowledges the clarity of 

the rule that "an officer may not use a ruse that, if it were true, 

would give the suspect no real choice but to consent." That lack 

of options is the necessary inference from the facts alleged in 

Pagán-González's complaint. Defendants are therefore not entitled 

to qualified immunity on appellant's search-based Fourth Amendment 

claim. 

III. Malicious Prosecution

 Pagán-González argues that he also has a viable Fourth 

Amendment claim for malicious prosecution because the defendants 

relied solely on the evidence obtained in the unlawful search of 

his computer in arresting and charging him. As the district court 

noted, to succeed on a malicious prosecution claim, our case law 

states that a plaintiff must "establish that: 'the defendant (1) 

caused (2) a seizure of the plaintiff pursuant to legal process 

unsupported by probable cause, and (3) criminal proceedings 

terminated in plaintiff's favor.'" Hernandez-Cuevas v. Taylor, 

723 F.3d 91, 101 (1st Cir. 2013) (quoting Evans v. Chalmers, 703 

F.3d 636, 647 (4th Cir. 2012)). Pagán-González contends that his 
- 39 - 

claim meets each of these requirements because, inter alia, the 

government voluntarily dismissed the criminal proceedings against 

him (thus, in his view, terminating the prosecution in his favor), 

and, excluding the unlawfully obtained evidence, his arrest and 

prosecution were unsupported by probable cause. 

 The government counters that Pagán-González fails on 

multiple grounds to state a constitutional claim of malicious 

prosecution. First and foremost, it challenges Pagán-González's 

assertion that evidence obtained from an unlawful search may not 

be used to support a finding of probable cause for arrest, 

detention, and prosecution. Citing published decisions from other 

circuits and unpublished decisions of our own court, the government 

points out that the exclusionary rule has been held to apply only 

in criminal proceedings. See, e.g., Lingo v. City of Salem, 832 

F.3d 953, 960 (9th Cir. 2016) (joining other circuits in "rejecting 

[§ 1983 plaintiff]'s suggestion that probable cause to arrest may 

be supported only by information that was obtained in accordance 

with the Fourth Amendment"); Townes v. City of New York, 176 F.3d 

138, 148 (2d Cir. 1999) (holding that "[v]ictims of unreasonable 

searches or seizures may recover damages directly related to the 

invasion of their privacy . . . [,] but such victims cannot be 

compensated for injuries that result from the discovery of 

incriminating evidence and consequent criminal prosecution"); see 

also id. at 149 ("The lack of probable cause to stop and search 
- 40 - 

does not vitiate the probable cause to arrest, because (among other 

reasons) the fruit of the poisonous tree doctrine is not available 

to assist a § 1983 claimant."); Machado v. Weare Police Dep't, 494 

Fed. App'x 102, 106 (1st Cir. 2012) (per curiam) (noting that 

evidence arguably seized in violation of the Fourth Amendment "is 

not subject to the exclusionary rule" in civil proceedings, "and 

amply provides probable cause to justify [plaintiff's] arrest"). 

The widespread view that probable cause to arrest or 

prosecute may be established in civil proceedings with unlawfully 

seized evidence means that, regardless of our view on the merits 

of Pagán-González's malicious prosecution claim, the defendants 

are entitled to qualified immunity on that claim. Put simply, no 

clearly established law barred the defendants from using evidence 

obtained in the unlawful search to support probable cause for the 

criminal charges brought against Pagán-González. 

In so concluding, we do not reach the first question of 

the qualified immunity analysis, i.e., whether Pagán-González 

might in fact have a viable Fourth Amendment claim stemming from 

his arrest and pre-trial detention. Pagán-González fails to 

develop fully an argument that he has satisfied the unsupportedby-probable-cause requirement stated in Hernandez-Cuevas 

notwithstanding the "real," but unlawfully obtained, evidence of 

his criminal activity the officers submitted to the magistrate 

judge. Nor does he suggest an alternative analysis for considering 
- 41 - 

his unlawful detention claim under the Fourth Amendment, such as 

the forceful theory of relief described by our colleague in his 

thoughtful concurrence. See generally Manuel v. City of Joliet,

Ill., 137 S. Ct. 911, 919 (2017) (noting that, where a "judge's 

order holding [arrestee] for trial . . . lacked any proper basis," 

the "ensuing pretrial detention, no less than [the] original 

arrest, violated [arrestee's] Fourth Amendment rights"); see also 

id. at 926 (Alito, J., dissenting) (stating that "malicious 

prosecution is a strikingly inapt 'tort analog[y],' Wilson [v. 

Garcia], 471 U.S. [261], 277 [(1985)] for Fourth Amendment 

violations" (alteration in original)).

Accordingly, the district court properly dismissed the 

malicious prosecution claim on the ground that defendants are 

entitled to qualified immunity. 

IV. Conclusion

For the reasons given above, we vacate the dismissal of 

appellants' search-based Fourth Amendment claim. In remanding for 

further proceedings on that claim, we leave it to the district 

court to address both defendants' contention that the complaint 

fails to adequately allege Agent Bonilla's responsibility for the 

search and plaintiffs' related request for discovery. We affirm 

the dismissal of the malicious prosecution claim based on qualified 

immunity.

Vacated in part, affirmed in part, and remanded for further 
- 42 - 

proceedings consistent with this opinion. Two-thirds costs to 

appellants. 

-Concurring Opinion Follows- 
- 43 - 

BARRON, Circuit Judge, concurring. I fully agree with 

the analysis that the majority sets forth to explain why David 

Pagán-González ("Pagán") states a viable Fourth Amendment claim 

with respect to the allegedly unconstitutional, warrantless search 

for which he seeks damages. I do so notwithstanding the 

defendants' assertion of qualified immunity. 

I also agree with the majority that Pagán has failed to 

provide us with a basis for overturning the District Court's order 

dismissing what he styles as his malicious prosecution claim. In 

that claim, he seeks damages for the pre-trial detention that he 

endured and that he contends violated the Fourth Amendment's 

prohibition against unreasonable seizures. I agree with the 

majority that Pagán fails to show, with respect to this claim, 

that he has alleged a violation of clearly established law, and 

thus I agree that this claim must be dismissed because it cannot 

survive the second step of the qualified immunity inquiry. 

The choice to resolve a constitutional tort claim with 

reference only to the second step of the qualified immunity 

inquiry -- as we do here with respect to Pagán's claim concerning 

his detention -- is often a sensible one. There is a risk, however, 

that such a choice will unduly stunt the development of the law. 

See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (explaining that 

first deciding whether there has been a constitutional violation 

often "promotes the development of constitutional precedent"). 
- 44 - 

Thus, in what follows, I explain why I am of the view that -- absent 

qualified immunity's obscuring screen -- Pagán has stated a viable 

claim for damages under the Fourth Amendment with respect to his 

pre-trial detention. 

I. 

Starting on December 12, 2013, Pagán was held in pretrial detention for five days solely based on an arrest warrant 

that federal law enforcement agents had procured from a federal 

magistrate judge after they had filed a criminal complaint against 

Pagán. See Fed. R. Crim. P. 4(a).16 I focus solely on this period 

of Pagán's pre-trial detention in assessing his detention-based 

claim for damages. I do so because Pagán's complaint, fairly read, 

plausibly alleges the following. 

At least one of the defendants deliberately or 

recklessly made false statements in an affidavit attached to the 

criminal complaint. Those statements misleadingly suggested to 

the magistrate judge that law enforcement had used 

constitutionally legitimate means to acquire the sole evidence 

that formed the basis for the magistrate judge's finding, in 

 

16 At the end of this five-day period, there was a preliminary 

hearing to determine whether there was "probable cause to believe 

an offense ha[d] been committed and that the defendant committed 

it." Fed. R. Crim. P. 5.1(e). Pagán does not allege in his 

complaint what evidence was put forward at this hearing. 

Accordingly, he has not met his burden to show that his pre-trial 

detention that ensued in the wake of that hearing violated his 

constitutional right to be free from unreasonable seizures. 
- 45 - 

issuing that arrest warrant, of "probable cause to believe that an 

offense ha[d] been committed and that [Pagán] committed it." Fed. 

R. Crim. P. 5.1(e). That evidence consisted of a computer of 

Pagán's that contained child pornography. 

Consider in this regard that Pagán alleges in his 

complaint that one of the agents who participated in his seizure 

stated in the affidavit that she attached to the application for 

the criminal complaint that, "on October 23, 2013, Agents obtained 

consent to examine two computers," including his own. Consider as 

well that Pagán also alleges in his complaint that this same agent 

made that conclusory representation concerning the consensual 

nature of the examination of the computers, even though she "knew 

Defendants lied to [Pagán] to secure and obtain the evidence 

referred to in her Affidavit." Consider, finally, that Pagán's 

complaint notes that this agent stated in the affidavit attached 

to the criminal complaint that she "personally participated in 

this investigation leading to the information contained in this 

affidavit either through personal investigation or through 

discussions with other law enforcement personnel." 

These allegations are plausible, moreover, in light of 

our holdings regarding the unconstitutional nature of the search 

that produced the computer. Recall in this regard that we find 

that "[n]o reasonable law enforcement agent could fail to 

understand the . . . compulsion that is inherent in the lie used 
- 46 - 

in this case" to obtain the evidence -- namely, the computer 

containing the child pornography -- that formed the basis for the 

application for the criminal complaint that led to Pagán's 

detention pre-trial. Panel Op. 37. Recall, too, that we hold 

that "any reasonable officer would have known that denying Pagán 

a 'free and unconstrained choice' to forgo the constitutional 

protection of a warrant was a violation of his Fourth Amendment 

rights." Panel Op. 38 (citing Schneckloth v. Bustamonte, 412 U.S. 

218, 225 (1973)). 

In sum, Pagán has clearly alleged that at least one of 

the agents involved in effecting his detention deliberately or 

recklessly misled the magistrate judge into thinking that the sole 

evidence of probable cause -- the computer -- had been acquired 

through a constitutionally compliant consensual transfer. But, 

Pagán has plausibly alleged, that agent was in fact aware that 

this evidence had been acquired through a clearly unconstitutional 

coercive ruse. 

The consequence of these allegations is that Pagán's 

detention-based claim brings to the fore at the first step of the 

qualified immunity inquiry an important legal question. We must 

decide, at this first step, whether these allegations about this 

agent's trickery in securing the arrest warrant describe a 

constitutional violation, such that Pagán may recover damages for 

his pre-trial detention. We must decide whether those allegations 
- 47 - 

state such a violation, moreover, notwithstanding that the 

magistrate judge relied on real evidence of criminal activity to 

make the probable cause finding that served as the predicate for 

the issuance of the arrest warrant that resulted in Pagán's seizure 

and notwithstanding that this real evidence was in fact strong 

enough to support that probable cause finding. 

In my view, these allegations do suffice to state such 

a violation. To explain why, though, I need to wend my way through 

an unfortunately complex doctrinal thicket. Only then can I 

adequately explain why, on the one hand, Pagán fails to show that 

he has alleged a violation of clearly established law, but, on the 

other, little logic supports the precedential obstacles that 

potentially stand in the way of his doing so. 

II. 

I begin by winding the clock back more than two decades. 

That was when the Supreme Court decided Albright v. Oliver, 510 

U.S. 266 (1994), which concerned the constitutional tort of 

malicious prosecution. I then consider the developments that have 

transpired in the years since Albright that bear on Pagán's case. 

A. 

Up until Albright, many lower courts had permitted 

plaintiffs to recover damages in § 1983 or Bivens actions against 

law enforcement for the deleterious effects of a baseless criminal 

prosecution. See Torres v. Superintendent of Police of P.R., 893 
- 48 - 

F.2d 404, 408 (1st Cir. 1990) (collecting cases). Those effects 

included, but were not limited to, the harm that the plaintiffs 

had suffered in consequence of their pre-trial detentions. See, 

e.g., Raysor v. Port Auth. of N.Y. & N.J., 768 F.2d 34, 39 (2d 

Cir. 1985) (including "loss of time," "physical discomfort or 

inconvenience," "mental suffering," and "humiliation" as 

compensable harms in a malicious prosecution claim) (quoting W. 

Prosser, Handbook of the Law of Torts 43 (4th ed. 1971)). 

Such damages actions were conceived of as ones that 

sought remedies for violations of an individual's substantive due 

process rights. See Albright, 510 U.S. at 271. Those actions 

were not conceived of as ones that sought remedies only for 

violations of the plaintiffs' Fourth Amendment right to be free 

from an unreasonable seizure. See id. In fact, the constitutional 

claims for malicious prosecution that were pursued in these cases 

were premised on the notion that they could be brought even if the 

defendants had never been seized at all. See id. at 295-96 

(Stevens, J., dissenting). The seizures were thought to be 

relevant, in other words, merely to the plaintiffs' showings of 

the damages that flowed from the constitutional violations that 

inhered in the baseless prosecutions, much as the reputational 

harms that could befall plaintiffs from the fact of such baseless 

prosecutions were thought to be relevant to such showings of 

damages as well. Id.; see also Raysor, 768 F.2d at 39. 
- 49 - 

The courts that permitted such suits to go forward often 

drew the elements for what they referred to as the constitutional 

tort of malicious prosecution from the common law tort of malicious 

prosecution. See Albright, 510 U.S. at 296-97, 297 n.10 (Stevens, 

J., dissenting) (citing W. Keeton, et al., Prosser and Keeton on 

Law of Torts § 119 (1984)); see also, e.g., Goodwin v. Metts, 973 

F.2d 378, 383 (4th Cir. 1992) ("[M]alicious prosecution in 

violation of section 1983 is [common law] malicious prosecution 

resulting in a constitutional deprivation."); Ayala-Martínez v. 

Anglero, 982 F.2d 26, 27 (1st Cir. 1992) (listing constitutional 

deprivations for purposes of a malicious prosecution claim, 

including "life, liberty, property," or the violation of "another 

constitutional right"). In line with the elements of that common 

law tort, these courts thus routinely required the plaintiffs 

bringing the constitutional variant of the tort to show two things. 

They had to show both that the prosecutions that they were 

challenging had been pursued in the absence of law enforcement 

having had any probable cause to pursue them and that the 

prosecutions ultimately had been terminated in favor of the 

plaintiffs. See Restatement (Second) of Torts § 653 (providing 

the elements of common law malicious prosecution). 

There was an understandable logic to the strict 

requirement that, to make out a constitutional claim for malicious 

prosecution, the plaintiff had to show both that there was no real 
- 50 - 

evidence of probable cause at the outset and that the prosecution 

had been terminated in the plaintiff's favor at the close. The 

gravamen of the constitutional claim was the utter baselessness of 

the prosecution itself -- not any detention that the plaintiff had 

been made to endure in the pre-trial period. That seizure -- like 

the hit to the plaintiff's reputation -- may have inflicted damage 

for which recovery could be sought. But, that damage was not 

itself either the source of the constitutional violation or the 

basis for the constitutional claim. 

Thus, the thinking went, if there were evidence of the 

defendant's criminal activity at the outset -- or, if the 

defendant's crime could be proven at the close -- then the 

constitutional claim for malicious prosecution could not succeed. 

There would be no ground for concluding in such a case that the 

prosecution had been so baseless as to violate the defendant's 

substantive due process rights. By contrast, if the plaintiff 

could show that law enforcement had fabricated the evidence of 

criminal activity from the get-go and that the prosecution failed 

at the end, then the constitutional claim for malicious prosecution 

would be viable. 

The inclusion of these two elements of the 

constitutional tort of malicious prosecution -- the one concerning 

probable cause and the one concerning favorable termination -- made 

sense for another reason. Insofar as the federal constitutional 
- 51 - 

guarantee of substantive due process itself barred such baseless 

prosecutions, it would have been surprising if that guarantee 

imposed such a bar even in cases in which the longstanding common 

law variant of the tort did not. 

B. 

Albright changed the legal landscape quite 

significantly. It did not do so by suggesting that -- insofar as 

the substantive due process guarantee barred baseless prosecutions 

-- the requirement that plaintiffs prove either the no-probablecause element or the favorable-termination element was 

problematic. See Albright, 510 U.S. at 273-74. Albright instead 

asked the logically prior question. Did substantive due process 

really render such a start-to-finish baseless prosecution itself 

unconstitutional? Albright concluded that, with respect to that 

question, the answer was, "No." Id. at 271. 

Albright's reasoning reflected a concern about expanding 

the scope of substantive due process. See id. at 271-74. 

Precisely because the Court relied on that particular line of 

logic, however, it provided no reason to think that there was a 

similar constitutional problem with permitting plaintiffs to 

recover damages for the harm that they suffered in consequence of 

their pre-trial detention -- even if it had been effected pursuant 

to legal process in the course of a prosecution -- under a Fourth 

Amendment-based, unlawful seizure theory. Id. A constitutional 
- 52 - 

claim of that type raised none of the concerns about expansive 

notions of substantive due process that had led the Court in 

Albright to reject the constitutional tort of malicious 

prosecution more generally. 

Albright did not actually go so far as to hold that such 

detention-focused, Fourth Amendment-based claims were viable. See 

id. at 274-75. But, in the wake of Albright, a majority of the 

circuits, including our own in Hernandez-Cuevas v. Taylor, 723 

F.3d 91 (1st Cir. 2013), took up the perceived invitation from the 

Court to recognize this more limited species of the broader 

constitutional tort of malicious prosecution that Albright had 

rejected. See Hernandez-Cuevas, 723 F.3d at 99 (collecting cases). 

These lower appellate courts held that plaintiffs could 

bring what these courts continued to refer to as a "malicious 

prosecution" claim under the Constitution -- and thus, under § 1983 

or Bivens -- so long as that claim was based on the Fourth Amendment 

and thus so long as that claim targeted an actual seizure of the 

plaintiff. Id. (recognizing a Fourth Amendment claim and 

collecting cases from other circuits doing the same). These courts 

thus shifted the focus away from the question of whether the 

prosecution itself was so baseless that it offended substantive 

due process to the question of whether the detention that resulted 

from the prosecution violated the Fourth Amendment because it led 

to an unconstitutional seizure. 
- 53 - 

These courts, though, still had to determine what the 

elements of this newly conceived Fourth Amendment-based malicious 

prosecution constitutional tort claim would be. See id. 

(describing circuit split regarding the elements of such a claim). 

And, articulating an answer proved to be tricky. 

We offered our answer in Hernandez-Cuevas. Id. at 

100-01. We characterized the constitutional claim itself -- as 

most courts did -- as one for "malicious prosecution[.]" Id. at 

101. But, we made clear that the plaintiff would not necessarily 

need to prove the elements of the common law variant of that tort 

to make such a claim. Id. at 100-01. Instead, we made clear that 

it was possible that the constitutional version of the claim (now 

understood to be premised on the Fourth Amendment's protection 

against unreasonable seizure) might require a different showing. 

Id. 

Ultimately, and presciently, we held that the elements 

of this type of constitutional tort of malicious prosecution were 

not dictated by the elements of the common law malicious 

prosecution analogue. Id. For that reason, we did not adopt 

wholesale the "malice" element that was part of the common law 

tort of malicious prosecution. Id. But, we still did appear to 

require as elements of the Fourth Amendment-based constitutional 

tort the two notable ones from the old pre-Albright substantive 

due process-based malicious prosecution claim that I have 
- 54 - 

described above. We determined that such a constitutional tort 

claim required the plaintiff to show the following elements: "the 

defendant (1) caused (2) a seizure of the plaintiff pursuant to 

legal process unsupported by probable cause, and (3) criminal 

proceedings terminated in plaintiff's favor." Id. (citing Evans 

v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012)). 

Thus, taken literally, Hernandez-Cuevas describes the 

elements of this Fourth Amendment-based malicious prosecution 

claim in a way that makes the existence of actual (and sufficiently 

substantial) evidence that the plaintiff committed the crime fatal 

to a Fourth Amendment-based tort claim challenging a pre-trial 

detention that has been carried out pursuant to legal process. 

See id. Such evidence would appear to make it impossible for the 

plaintiff to show that the detention was carried out in the absence 

of the requisite probable cause. Hernandez-Cuevas also makes a 

favorable termination of the prosecution critical to the 

plaintiff's ability to recover for the harm caused by that 

detention. Id. 

C. 

This precedential review brings us, then, to the conduct 

by law enforcement that Pagán alleges occurred in this case. That 

conduct occurred after we decided Hernandez-Cuevas, which is no 

doubt why Pagán relies on Hernandez-Cuevas in arguing that he has 

stated a claim for damages. But, given our statement of the 
- 55 - 

necessary elements of the Fourth Amendment-based malicious 

prosecution claim in that precedent, I agree with the majority 

that Pagán has failed to make the case that he has alleged a 

violation of clearly established law. 

Pagán's complaint -- unlike the one in Hernandez-Cuevas 

itself, 723 F.3d at 95 -- challenges a pre-trial seizure that was 

based on a finding of probable cause by a magistrate judge that 

was premised on real and substantial (rather than fabricated) 

evidence of his criminal activity. To be sure, Pagán does 

challenge the lawfulness of the means by which law enforcement 

acquired that evidence -- and the misrepresentations that law 

enforcement made to the magistrate judge about those means. He 

does not assert, though, that the evidence itself was fabricated 

by law enforcement, as was alleged to have been the case in 

Hernandez-Cuevas, 723 F.3d at 95, or even that the evidence was on 

its face so patently weak that it was obviously insufficient to 

make out a finding of probable cause. 

Nor does Pagán develop any argument as to how, 

notwithstanding the existence of real and substantial evidence of 

his criminal conduct, his claim is nonetheless one that clearly 

satisfies the probable cause element that Hernandez-Cuevas appears 

to have established. See id. at 100-01. Nor, moreover, does he 

even develop any argument as to why his claim does not need to be 
- 56 - 

of that kind in order for it to survive the second step of the 

qualified immunity inquiry. 

Thus, I agree with the majority that -- at least given 

the arguments that Pagán makes to us -- Hernandez-Cuevas poses an 

insuperable obstacle to his claim going forward. Accordingly, I 

join the majority's holding at step two of the qualified immunity 

inquiry. Panel Op. 39-41. 

There has, however, been yet another change in the 

relevant legal landscape, although this one occurred only after 

the initiation of Pagán's case. It thus does little to help Pagán 

meet the "clearly established law" prong of the qualified immunity 

inquiry, at least given the arguments that he makes to us. 

Nevertheless, this change does suggest to me that it would be a 

mistake to make too much of the obstacle that seemingly stands in 

the way of Pagán's claim with respect to similar claims that may 

be brought by others. Thus, in the remainder of my analysis, I 

explain my reasons for so concluding. 

III. 

The post-Hernandez-Cuevas legal change that I have in 

mind was brought about by the Supreme Court's recent decision in 

Manuel v. City of Joliet, Ill., 137 S. Ct. 911 (2017). An 

implication that I draw from Manuel is that it does not make sense 

to continue to treat a Fourth Amendment-based claim for damages 

resulting from an unlawful seizure effected via pre-trial 
- 57 - 

detention of a criminal defendant as if it were one for "malicious 

prosecution." A further implication that I draw from Manuel is 

that we are not obliged to borrow the elements from the common 

law -- or substantive due process -- tort of malicious prosecution 

when considering a Fourth Amendment-based claim that is brought 

for damages for the harm caused by such pre-trial detention. 

To support the first of these conclusions, I note that 

the Supreme Court granted certiorari in Manuel on the question of 

"whether an individual's Fourth Amendment right to be free from 

unreasonable seizure continues beyond legal process so as to allow 

a malicious prosecution claim based upon the Fourth Amendment." 

Id. at 923 (Alito, J., dissenting) (emphasis in original). Yet, 

the Court held, "Manuel may challenge his pretrial detention on 

the ground that it violated the Fourth Amendment," even though it 

occurred "after the start of 'legal process[,]'" id. at 914 

(majority opinion), without ever referring to such a claim as one 

for "malicious prosecution[,]" see id. at 914-22. 

Moreover, Manuel remanded to the Seventh Circuit to 

consider "the elements of, or rules applicable to" Manuel's claim, 

without purporting to set forth the elements from the traditional 

tort of malicious prosecution or to answer the timeliness question 

by applying the special accrual rules from the common law variant 

of the malicious prosecution tort. Id. at 922. In fact, even 

though Justice Alito in dissent asserted that the elements of 
- 58 - 

common law malicious prosecution are entirely inconsistent with a 

Fourth Amendment claim like Manuel's, id. at 925-26 (Alito, J., 

dissenting), the majority did not attempt to rebut these arguments 

at all in permitting the claim to go forward, see id. 912-22 

(majority opinion). 

In addition to the fact that Manuel eschews the 

"malicious prosecution" label, it also supports the implication 

that I draw from it that courts need to examine claims such as the 

one that Pagán brings through the lens of the Fourth Amendment 

rather than through the lens of the common law tort of malicious 

prosecution. Although Manuel expressly encourages us to "look 

first to the common law of torts" to define the elements of a 

§ 1983 claim, it explains that those "[c]ommon-law principles are 

meant to guide rather than to control the definition of § 1983 

claims,17 serving 'more as a source of inspired examples than of 

prefabricated components.'" Id. at 920-21 (quoting Hartman v. 

Moore, 547 U.S. 250, 258 (2006)). The Court then proceeds to 

admonish us to "closely attend to the values and purposes of the 

constitutional right at issue" when "applying, selecting among, or 

adjusting common law-approaches." Id. at 921. 

 

17 We look to the common law for guidance in Bivens cases, as well. 

See Hernandez-Cuevas, 723 F.3d at 101 (citing Albright, 510 U.S. 

at 277 n.1 (Ginsburg, J., concurring)). 
- 59 - 

Thus, it is with this fresh guidance from Manuel in mind 

that I now consider whether the Fourth Amendment claim that Manuel 

recognizes encompasses a claim like Pagán's. For the reasons set 

forth below, I conclude that it does. I do so despite the fact 

that the evidence that the magistrate judge relied upon to issue 

the arrest warrant that permitted Pagán's seizure was both real 

and sufficient to establish the requisite probable cause. I do 

so, as well, even though the analogous evidence of probable cause 

in Manuel allegedly had been fabricated by law enforcement, just 

as it allegedly had been fabricated in Hernandez-Cuevas. 

A. 

As Manuel recognizes, a claim of the kind that Pagán 

brings is necessarily predicated on a challenge to whether the 

seizure at issue comports with the Fourth Amendment. The focus, 

therefore, should be on discerning the elements of the 

constitutional tort that logically relate to the constitutional 

right -- namely, the Fourth Amendment prohibition against 

unreasonable seizures -- on which the tort is grounded. Id. at 

920-21. 

Such a focus, however, makes it mysterious to me why we 

would continue to define the elements of the claim as HernandezCuevas -- at least at first blush -- presently does. See 

Hernandez-Cuevas, 723 F.3d at 100-01. I start with the favorable 

termination element, which Hernandez-Cuevas retains from the old, 
- 60 - 

pre-Albright constitutional tort of malicious prosecution based on 

the common law tort. Compare id., with Restatement (Second) of 

Torts § 653. I then consider the element concerning probable 

cause, which Hernandez-Cuevas retains from the earlier version of 

the tort as well. 

With respect to making favorable termination an element 

of the Fourth Amendment-based tort, such as the one that Pagán 

brings, I see little reason to retain that element post-Manuel. 

The termination of the prosecution -- even if unfavorable to the 

defendant -- cannot render the pre-trial seizure of the defendant 

constitutional if that seizure was unlawful from the inception. 

No matter how the prosecution ends -- including if it ends in a 

conviction -- the defendant still has a right for there to have 

been a constitutionally valid basis for the pre-trial detention 

that he endured. Thus, the favorable termination element -- an 

artifact of the old, no longer viable substantive due processbased malicious prosecution constitutional tort -- seems to me to 

be an anachronism. Accord Manuel, 137 S. Ct. 925-26 (Alito, J., 

dissenting). 

I reach the same conclusion with respect to the element 

concerning probable cause -- at least if we understand that element 

to require a showing that the magistrate judge's finding of 

probable cause that grounded the seizure was predicated on evidence 

that law enforcement fabricated or that was so patently weak that 
- 61 - 

it could not plausibly support a probable cause finding. I add 

this caveat about whether Hernandez-Cuevas actually meant to 

establish a definitive holding about the requirements of the 

probable cause element for the following reason. In HernandezCuevas, the only evidence of probable cause had -- allegedly -- 

been fabricated by law enforcement. 723 F.3d at 95. Thus, we had 

no occasion there to decide -- definitively -- whether the probable 

cause requirement that we set forth was intended to require the 

plaintiff to show that there was simply no real evidence sufficient 

to establish probable cause at all. It was enough to conclude 

that the claim could go forward when the plaintiff had made that 

showing by virtue of the allegations concerning fabrication. 

But, insofar as Hernandez-Cuevas does establish a 

probable cause element of a strict kind, I do not see why it is 

right to do so given the recent guidance that we have received 

from Manuel. Here, too, my concern is that the element is being 

defined with reference to the old, now-rejected malicious 

prosecution constitutional tort, rather than with reference to the 

Fourth Amendment-based tort, which is the only variant of that 

tort that remains viable after Manuel. 

There is a logic to requiring the prosecution to have 

been based on real evidence of a crime at the outset if the 

constitutional claim targets the bringing of the prosecution 

itself. There is no similar logic, though, to imposing that 
- 62 - 

requirement if the constitutional claim challenges only the 

seizure that occurred in connection with that prosecution. 

To see why, we need only follow Manuel's admonition that, 

in discerning the elements of this Fourth Amendment-based tort, we 

must keep our eye on the underlying constitutional right. Manuel, 

137 S. Ct. at 920-21. A consideration of that right, as I shall 

next explain, reveals that even real and substantial evidence of 

probable cause -- such as is present in Pagán's case -- may be 

insufficient to render an arrest warrant that is issued based on 

that evidence one that law enforcement may constitutionally rely 

upon to carry out the ensuing seizure. 

B. 

The Fourth Amendment provides that "no Warrants 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. 

Importantly, for present purposes, the Supreme Court has explained 

that the Amendment's protection consists of more than the 

requirement of probable cause. Rather, the Court has explained, 

"[t]he bulwark of Fourth Amendment protection, of course, is the 

Warrant Clause, requiring that, absent certain exceptions, police 

obtain a warrant from a neutral and disinterested magistrate before 

embarking upon a search." Franks v. Delaware, 438 U.S. 154, 164 

(1978). 
- 63 - 

Further, the Court emphasized in Franks that "it is the 

magistrate who must determine independently whether there is 

probable cause" in a case where a warrant would be required and 

thus "it would be an unthinkable imposition upon his authority if 

a warrant affidavit, revealed after the fact to contain a 

deliberately reckless false statement, were to stand beyond 

impeachment." Id. at 165 (emphasis added). And, finally, Franks 

applies equally to arrest warrants issued by a magistrate judge 

pursuant to a criminal complaint as to search warrants. See Burke 

v. Town of Walpole, 405 F.3d 66, 82 (1st Cir. 2005). 

Thus, a showing of probable cause is not the only 

prerequisite to a lawful seizure of a criminal defendant -- by 

reason of his suspected criminal activity -- under the Fourth 

Amendment. Rather, per Franks, the probable cause showing is 

necessary but not sufficient, because, in many circumstances, a 

defendant's seizure may be constitutionally carried out only 

pursuant to an arrest warrant issued by a neutral magistrate judge. 

Franks, 438 U.S. at 164. 

Moreover, in those circumstances in which a warrant is 

required, the seizure does not necessarily comply with the Fourth 

Amendment simply because law enforcement carried it out pursuant 

to such a warrant. Rather, even in that event, the seizure may be 

challenged on Fourth Amendment grounds, as Franks shows, too. 
- 64 - 

To be sure, even a defective arrest warrant -- say, one 

resting on evidence too slight to establish probable cause -- may 

legitimate the conduct of officers who, in good faith, effect an 

arrest pursuant to that defective warrant. The good faith 

exception to the warrant requirement ensures this outcome. 

United States v. Leon, 468 U.S. 897, 920-23 (1984); see also United 

States v. Barnes, 895 F.3d 1194, 1201-02 (9th Cir. 2018) (applying 

Leon's good faith exception to an arrest warrant acquired via 

criminal complaint). But, there are cases in which law enforcement 

may not rely on an arrest warrant in good faith, and those cases 

include ones in which "the magistrate . . . in issuing a warrant 

was misled by information in an affidavit that the affiant knew 

was false or would have known was false except for his reckless 

disregard of the truth." Leon, 468 U.S. at 923 (citing Franks, 

438 U.S. at 154). 

The logic underlying the precedent that limits the good 

faith exception is clear enough. An arrest warrant can legitimate 

a seizure premised on a warrant that in fact lacks probable cause. 

An arrest warrant cannot legitimate a seizure under the Fourth 

Amendment if law enforcement precluded the magistrate judge from 

performing the neutral gatekeeping role required of it by the 

Warrant Clause. In such circumstances, the warrant cannot provide 

a good faith basis for law enforcement to think that the seizure 
- 65 - 

was lawful due to the trick on the magistrate judge that was used 

to secure the warrant. 

Against this legal background, Hernandez-Cuevas and 

Manuel were hardly innovative in permitting Fourth Amendment-based 

damages claims to proceed where the plaintiff alleged that his 

pre-trial seizure had been carried out pursuant to an arrest 

warrant that the magistrate judge issued based on evidence of 

probable cause that law enforcement had fabricated. Manuel, 137 

S. Ct. at 914-15, 920 n.8; Hernandez-Cuevas, 723 F.3d at 102-03. 

In such circumstances, the warrant clearly could not legitimate 

the seizure, given the trick that law enforcement had performed on 

the magistrate judge that led the magistrate judge to issue the 

warrant. 

The question for our purposes, though, is not quite so 

easily answered as it was in those cases. The trickery in Manuel 

and Hernandez-Cuevas led the magistrate judge to issue a warrant 

based on evidence of probable cause that simply did not exist and 

that law enforcement knew from the outset did not exist. In a 

case like Pagán's, by contrast, law enforcement has not tricked 

the magistrate judge into believing that there was evidence of 

probable cause when there in fact was none. There was such 

evidence all along. Rather, law enforcement has -- allegedly -- 

merely tricked the magistrate judge into believing that the 
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evidence of probable cause was constitutionally acquired when law 

enforcement knew it was not. 

As I read our precedent, however, where officers trick 

the magistrate judge about the unlawfully acquired nature of the 

evidence that they have put forward to establish probable cause, 

the resulting warrant is no less premised on a lie or reckless 

half-truth that materially taints the magistrate judge's capacity 

to perform the constitutionally prescribed gatekeeping role than 

when the deceit concerns the existence of the evidence. Thus, law 

enforcement's ability to rely on that warrant in good faith to 

justify the seizure may be limited just as it would be in a case 

in which the lie or reckless untruth does concern the evidence's 

existence. 

Specifically, we have explained that a warrant -- even 

if predicated on evidence that was itself real -- may not be relied 

upon by law enforcement, if it had been secured by deliberate lies 

or reckless omissions that misled the magistrate judge into 

thinking that critical evidence of probable cause had been acquired 

constitutionally or with a good faith belief that it had been. 

See United States v. Diehl, 276 F.3d 32, 43 (1st Cir. 2002). We 

have done so, presumably, on the understanding that a fully 

informed magistrate judge might have exercised its discretion to 

decline to issue the warrant had it known that the evidence of 

probable cause had been secured only through law enforcement 
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conduct that was not constitutional or that was not undertaken in 

good faith that it was. In fact, our precedent, like the precedent 

of other circuits, makes clear that a magistrate judge may decline 

to issue a warrant when the evidence forming the basis for probable 

cause is known to have been acquired in such concerning 

circumstances. See United States v. Bain, 874 F.3d 1, 21-22 (1st 

Cir. 2017) (collecting cases).18 Thus, lies or reckless omissions 

that hide facts that would reveal such problematic means of 

acquiring such evidence -- like the lies alleged by 

Pagán -- interfere with the magistrate judge's constitutional role 

as a gatekeeper. See Franks, 438 U.S. at 155-56. 

In Bain, for example, we held that a search warrant could 

be issued based on unconstitutionally acquired evidence of 

probable cause obtained in a prior search if that prior search had 

been conducted on a "good faith" belief that it was conducted 

constitutionally. Bain, 874 F.3d at 22.19 In doing so, we 

 

18 The only two circuits to take a different approach have adopted 

a per se rule precluding a magistrate judge from relying on 

unlawfully acquired evidence when evaluating whether there is 

probable cause for a warrant to issue. See United States v. 

McGough, 412 F.3d 1232, 1239-40 (11th Cir. 2005); United States v. 

Wanless, 882 F.2d 1459, 1466-67 (9th Cir. 1989). 

19 In that case, without deciding that it was the correct 

formulation of the test for "good faith," we applied the Eighth 

Circuit's formulation that the prior search must have been "close 

enough to the line of validity to make the officers' belief in the 

validity of the warrant objectively reasonable." Bain, 874 F.3d 

at 22 (quoting United States v. Hopkins, 824 F.3d 726, 733 (8th 

Cir. 2016)). 
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reaffirmed our reasoning in Diehl. There, we explained that 

officers would be barred from relying on a search warrant that a 

magistrate judge issued based on evidence acquired from a prior 

warrantless search, if the application for the follow-on search 

warrant omitted facts that the defendant alleged would have shown 

the prior search to have been undertaken not merely unlawfully but 

in "such bad faith to preclude a warrant." Diehl, 276 F.3d at 43 

(citing United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996) 

(barring reliance on a warrant in such circumstances (citing 

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

Franks itself, I should add, supports the same 

conclusion. It concerned misrepresentations by officers about 

whether certain statements -- necessary for a finding of probable 

cause by the magistrate judge -- had been made to officers in 

violation of the defendant's rights under Miranda v. Arizona, 384 

U.S. 436 (1966). Franks, 438 U.S. at 156-57. Franks itself, in 

other words, precluded law enforcement from relying on a search 

warrant that had been secured through misrepresentations to the 

magistrate judge, even though the evidence of probable cause on 

which the magistrate judge relied in issuing the warrant was real 

(though, I suppose, arguably unreliable). Id. And, of course, we 

have held Franks to apply equally to the acquisition of arrest 

warrants by criminal complaint. See Burke, 40 F.3d at 82. 
- 69 - 

Thus, the following would appear to be clear, at least 

under our precedent. When law enforcement intentionally or 

recklessly makes false statements to a magistrate judge about the 

constitutional or good faith means by which law enforcement 

obtained the evidence that supplies the basis for finding the 

probable cause necessary to justify the warrant that would permit 

a pre-trial seizure of a criminal defendant, such lies -- or 

reckless omissions -- undermine the magistrate judge's ability to 

perform its constitutional role under the Warrant Clause. See 

Franks, 438 U.S. at 155-56. Such intentionally false statements 

or reckless omissions thus preclude law enforcement officers from 

relying in good faith on the arrest warrant that is then issued 

(at least when the officers know of the lies or reckless 

omissions). And thus, under our precedent, such lies or reckless 

omissions prevent that warrant from legitimating the seizure that 

is carried out in reliance on it, Leon, 468 U.S. at 923 (citing 

Franks, 438 U.S. at 154), notwithstanding that the lies or reckless 

falsehoods concerned only the means by which the evidence of 

probable cause had been acquired and not the existence of the 

evidence itself. 

C. 

Against this legal backdrop, I do not see why a plaintiff 

should be barred from seeking damages for his pre-trial seizure, 

simply because he can show that the lies or the reckless omissions 
- 70 - 

that law enforcement told the magistrate judge to secure the arrest 

warrant concerned only how real evidence had been acquired and not 

whether such real evidence existed. The deceit still stripped the 

magistrate judge of the ability to perform its constitutionally 

prescribed gatekeeping role. The deceit did so by stripping the 

magistrate judge of the opportunity to deny law enforcement the 

ability to exploit the unconstitutional conduct it used to acquire 

the evidence that supplies the sole basis for procuring the warrant 

that would permit a defendant to be seized. Under our precedent, 

therefore, the seizure would appear to be no less 

unconstitutional -- insofar as the warrant is necessary in the 

first place -- for having been carried out pursuant to 

unconstitutional trickery of that comparatively subtle (but still 

egregious) sort. Cf. Manuel, 137 S. Ct. at 918 (noting that the 

Fourth Amendment's prohibition on "government officials . . . 

detaining a person in the absence of probable cause" may "also 

occur when legal process itself goes wrong"). 

Nor would such a conclusion be unique. There is some 

precedent that recognizes that the old "probable cause" 

element -- as developed in connection with the pre-Albright 

constitutional tort of malicious prosecution -- should not be 

construed to require a showing that the finding of probable cause 

rested on fake rather than real evidence. For example, in Boyd v. 

City of New York, 336 F.3d 72 (2d Cir. 2003), the Second Circuit 
- 71 - 

considered a case in which the officers lied repeatedly, both to 

the grand jury and at a suppression hearing, about whether key 

testimony by the defendant had been given in violation of Miranda. 

Boyd, 336 F.3d at 74. There was no contention in Boyd that the 

criminal defendant's statements were false, only that officers 

knew them to be inadmissible at the eventual trial. Id. Yet, 

rather than consider only whether there was real evidence of 

probable cause to believe Boyd had committed a crime -- as was the 

standard, pre-Albright inquiry -- the Second Circuit expanded the 

probable cause inquiry to allow that element to be satisfied even 

when there was real evidence of probable cause. Id. at 74 n.7. 

Thus, even before Manuel, at least one circuit appeared 

to be grappling with the apparent mismatch between the elements of 

existing, substantive due process malicious prosecution claims and 

the new Fourth Amendment-based claim challenging the seizure 

alone. In my view, that circuit was right to be doing so. 

Consider a case in which law enforcement bribed the 

magistrate judge to rule its way in assessing whether debatable 

but real evidence -- say, officer testimony in which credibility 

determinations are paramount -- could suffice to permit the 

seizure. The victim of that misconduct should not be barred from 

seeking recompense for the harm that he has endured from the 

resulting detention. There, the evidence of probable cause itself 

would not have been fabricated. Nor might it even have been so 
- 72 - 

patently weak as to preclude an officer from relying in good faith 

on a warrant based on it. Nevertheless, the detainee would still 

have been deprived of his Fourth Amendment right to have a neutral 

magistrate judge -- rather than an interested executive 

actor -- assess whether the detention was justified.20

The situation, it seems to me, is no different if the 

magistrate judge was misled into believing that the evidence of 

probable cause had been acquired consensually rather than pursuant 

to a ruse that the officers knew to be unconstitutionally coercive. 

Such deceit -- even if it inheres only in a reckless omission, 

rather than a deliberate untruth, and even if it concerns the means 

of acquisition rather than the evidence's actual 

existence -- prevents the magistrate judge from performing its 

constitutionally contemplated role as a neutral adjudicator of 

whether detention is warranted. See Franks, 438 U.S. at 165. That 

is so, under our precedent, notwithstanding that this deceit 

 

20 I note in this regard that, although our review of a District 

Court's legal conclusions on a motion to suppress, "including its 

conclusion regarding the existence of probable cause, [is] de 

novo," United States v. Clark, 685 F.3d 72, 75 (1st Cir. 2012), we 

also afford "great deference" to "[a] magistrate's determination 

of probable cause[,]" id. at 78. This is especially so where the 

probable cause determination rests on factual findings or 

credibility determinations. Id. at 75, 78. Thus, such a bribe 

would appear to short-circuit the gatekeeping process, at least in 

a case in which the probable cause finding would itself depend on 

fact finding by the magistrate to which we would otherwise defer. 
- 73 - 

concerns only how law enforcement acquired the evidence of probable 

cause and not whether the evidence exists. 

D. 

Allowing claims like Pagán's to proceed would not mean 

that constitutional tort suits could be used to attack arrests 

based on warrants as a general matter. Leon still shields officers 

where they rely on warrants in good faith, except in very limited 

circumstances, such as Franks violations in securing the warrant. 

Leon, 468 U.S. at 923 (citing Franks, 438 U.S. at 154). But, when 

the officers' reliance on that warrant is in bad faith -- such as 

when the officer who participates in the seizure is also 

responsible for the reckless or deliberate misrepresentations that 

led to the warrant's tainted issuance -- I do not see why the 

specter of a damages judgment should not be in the offing. 

This approach is also entirely consistent with the 

prevailing view that the exclusionary rule does not apply to civil 

proceedings. See Lingo v. City of Salem, 832 F.3d 953, 960 (9th 

Cir. 2016); Townes v. City of New York, 176 F.3d 138, 148 (2d Cir. 

1999). Under this approach, the inquiry is not whether the 

evidence shows that there was probable cause to believe the 

plaintiff had committed a crime. The inquiry is whether law 

enforcement precluded the magistrate judge from performing its 

constitutionally assigned gatekeeping role through deliberate lies 

or reckless omissions about the means used to acquire the evidence 
- 74 - 

of probable cause. Thus, as the Fourth Amendment-based tort claim 

does not depend on guilt or innocence or on whether the improperly 

procured evidence was real or fake, the plaintiff does not need to 

exclude the evidence of probable cause to win. The plaintiff needs 

only to put forward facts sufficient to show a Franks violation. 

In addition, in all § 1983 cases and Bivens actions, 

plaintiffs must show some causation between the defendant's 

conduct, the constitutional violation, and the plaintiff's injury. 

See Martinez v. California, 444 U.S. 277, 285 (1980) (holding that 

the language of § 1983 imposes a proximate cause requirement on 

claims under that statute); Hernandez-Cuevas, 723 F.3d at 100 

(requiring a showing of causation in Bivens actions). As we 

explained in Hernandez-Cuevas, "in most cases, the neutral 

magistrate judge's determination that probable cause exists for 

the individual's arrest is an intervening act that could disrupt 

any argument that the defendant officer had caused the unlawful 

seizure." Id. at 100 (citing Sanchez v. Pereira-Castillo, 590 

F.3d 31, 50 (1st Cir. 2009) ("We employ common law tort principles 

when conducting inquiries into causation under § 1983.")). We 

noted, too, that this "causation problem" can be overcome only if 

it is clear that law enforcement officers were "responsible for 

[the plaintiff's] continued, unreasonable pretrial detention," 

including by "fail[ing] to disclose exculpatory evidence" or 

"l[ying] to or misle[ading] the prosecutors." Id. 
- 75 - 

IV. 

For these reasons, I conclude that Pagán has 

sufficiently stated a claim for damages under the Fourth 

Amendment -- save, that is, for the qualified immunity defense 

that bars that claim from surviving here. The lack of clarity in 

our precedent or the Supreme Court's as to the elements of such a 

claim precludes him from overcoming that defense -- at least given 

his arguments to us. I recognize that this caveat concerning 

qualified immunity is a rather significant one -- and not only in 

Pagán's case. The defense of qualified immunity is usually invoked 

in cases like this one, just as it has been invoked here. A 

plaintiff who loses at the second step of the qualified immunity 

inquiry is no better off than one who loses at the first step. 

Still, it is important to address the first step of the 

qualified immunity inquiry. That step is certainly relevant in 

cases in which the defense of qualified immunity is not properly 

invoked -- and, in fact, it was not invoked in either HernandezCuevas or Manuel. Hernandez-Cuevas, 723 F.3d 97, 97 n.7; see 

generally Manuel, 137 S. Ct. at 914-22. 

With respect to that step, moreover, it is clear to me 

that, in light of Manuel, it is a mistake to attempt to fashion a 

half-fish, half-fowl, hybrid malicious prosecution/Fourth 

Amendment based tort. I thus do not see how, post-Manuel, we could 

continue to justify treating a Fourth Amendment-based claim such 
- 76 - 

as Pagán brings here -- targeting, as it does, only the seizure 

and not the prosecution -- as a species of the old malicious 

prosecution tort. Rather, we must understand that tort for what 

it is -- a Fourth Amendment-based challenge to pre-trial detention 

that targets law enforcement's efforts to circumvent the warrant 

requirement through lies or reckless omissions that conceal from 

the magistrate judge facts material to its ability to perform its 

constitutionally assigned role. 

For that reason, I think it important to lay out this 

analysis here. That way, in a subsequent case we will be better 

positioned to resolve definitively how Manuel bears on -- and, in 

my view, supersedes -- two of the elements of the constitutional 

tort that we described in Hernandez-Cuevas: the ones concerning 

favorable termination and probable cause. See Hernandez-Cuevas, 

723 F.3d at 100-01. 

 Unless we at some point address step one of the 

qualified immunity inquiry in a case involving such a claim, or 

otherwise definitively define the elements of this constitutional 

tort post-Manuel, we will be at risk of leaving the law unclear in 

key respects. In consequence, we will be permitting our preManuel case law to exert an outsized influence on the types of 

remedies that may be available to those who have been the victims 

of unlawful law enforcement trickery of the kind that the Fourth 

Amendment quite clearly condemns. 
- 77 - 

Finally, and relatedly, I would not rule out the 

possibility that, even before our court does provide clarity to 

the doctrine in this area, a plaintiff might be able to develop an 

argument -- which Pagán has not attempted to do here -- as to why 

such a claim might be viable even in the face of a qualified 

immunity defense. Our Fourth Amendment precedents in Bain and 

Diehl clearly establish that law enforcement officers -- per 

Franks -- may not rely on warrants in good faith that are the 

product of their own reckless half-truths about the 

constitutionality (or the officers' good faith belief in the 

constitutionality) of the means used to acquire the evidence of 

probable cause on which the magistrate judge relied in issuing the 

warrant. Nor does Hernandez-Cuevas suggest otherwise. Rather, 

Hernandez-Cuevas at most creates doubt about the content of one 

element of the constitutional tort suit that may be brought to 

recoup damages for the harm caused by the pre-trial detention that 

results from such clearly unconstitutional law enforcement 

conduct. 

Given that qualified immunity is intended to serve a 

practical, functional purpose, I am not certain that law 

enforcement officers should be immune from damages for engaging in 

conduct that, at the time it was undertaken, was clearly 

unconstitutional under our precedent, simply because we had not 

also as of that time clearly described an element of the 
- 78 - 

constitutional tort that may be brought to recover damages for the 

harm caused by such conduct. We have no occasion, however, to 

consider such a refined question of qualified immunity law here. 

I thus leave it for another day. 

For present purposes, it is enough to lay out the lines 

along which the relevant doctrine may be reconstructed. Doing so 

is the first step along the route to ensuring that this body of 

doctrine is freed from the lingering influence of the pre-Albright 

tort of malicious prosecution and thus may reflect more fully 

Manuel's suggestion that we "closely attend to the values and 

purposes of the constitutional right at issue" when "applying, 

selecting among, or adjusting common law-approaches." Manuel, 137 

S. Ct. at 921.