First Circuit: Wrongfully Incarcerated Protected Under Fourth Amendment from Malicious Prosecution


Hernandez-Cuevas v. Taylor

Background: In 2004 a joint federal-Commonwealth task force consisting of FBI agents and local police officers opened a special investigation targeting a drug and money laundering conspiracy in Carolina, Puerto Rico.  The task force had two confidential informants (“UI-1”) and (“UI-2”), who had arranged a meeting with a target of the investigation.  After the crime had been committed the surveillance officers observed one of the vehicles drop an individual involved in the crime off at a multi-unit building where the plaintiff lived.  Throughout the next year the FBI was unable to identify the individual who exited the vehicle that day and in a rush to indict someone, two officers and UI-1 conspired to manufacture evidence implicating the plaintiff as the individual from the day of the crime.  The officers carried out a tainted photo identification even though the plaintiff bared very little resemblance to the individual described on the day of the crime.  On December 3, 2007 police arrested Hernandez, charging him with delivering $321,956 in drug proceeds to the undercover informant.  He was transferred to a federal prison in New Jersey where he was held for three months while awaiting further proceedings.  On February 29th he was released and on April 18, 2008 the United States Attorney for the District of New Jersey dismissed the charges against him.

On March 2, 2009, the plaintiff filed his complaint alleging that the conduct of the officers caused him to be held in federal custody for three months without probable cause.  The defendants argued that the case should be dismissed because the statute of limitations had passed as any Fourth Amendment claim had accrued on the day of his arrest.  While the court agreed with the defendants that the statute of limitations had passed on a straight forward Fourth Amendment false arrest claim, the statute of limitations for malicious prosecution does not begin to accrue until the day that the proceedings terminate in the plaintiffs favor (the dismissal of charges in April of 2008).  The defendants then filed another motion to dismiss, arguing that as police officers, they were entitled to qualified immunity.  The court denied their motion and the defendants filed the interlocutory appeal.

Issue: Whether the facts alleged show that the officer’s conduct violated some constitutional right

Analysis: The court began by highlighting the fact that neither the First Circuit nor the Supreme Court has determined that the Fourth Amendment includes a malicious prosecution claim.  However, each of the eight Courts of Appeals who have directly tackled the issue has concluded that individuals are protected under the Fourth Amendment against pretrial detention without probable cause.  In a common law malicious prosecution claim, the plaintiff must demonstrate that the officer acted with subjective malice.  In a purely constitutional Fourth Amendment claim, the plaintiff only needs to establish that his seizure was objectively unreasonable.  The approach taken by the Court was similar to that of other Court of Appeals who had been presented with the issue in the past; Fourth Amendment protection does not end when an arrestee becomes held pursuant to legal process.

The Court further stated that a plaintiff may bring such a claim under Section 1983 if he or she can 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 plaintiffs favor.  In this case, the police officers acted with reckless disregard by blatantly making false statements in the warrant to arrest the Plaintiff in addition to the fact that the description given by the surveillance officer on the day of the incident did not resemble the plaintiff at all.  Finally, the case ended in the Plaintiff’s favor as the prosecutor dismissed the charges against him.

SEC Finally Adopts New Regulation D Amendment – Lifting General Solicitation Ban



On July 10, 2013, the Securities and Exchange Commission (“SEC”) adopted a new rule that lifts the ban on general solicitation of private offerings.  The rule was adopted as a part of the commission’s decision to implement Section 201(a) of the Jumpstart Our Business Startups Act (the JOBS ACT”).     Prior to July 10, Companies who wanted raise capital through a private offering had two options: (1) Register the securities offering with the SEC; or (2) rely on an exemption from registration.  In a separate release, in order to implement Section 926 of the Dodd-Frank Act, the SEC adopted amendments to Rule 506 which disqualified issuers from utilizing Rule 506 if “felons and other bad actors” are participating in the offering.

While the SEC lifted the ban on advertising, they issued a rule proposal for Regulation D that requires issuers to provide a greater amount of information regarding the offerings in order to allow the SEC to regulate the market.  The proposal is aimed to protect victims from fraudsters trying to solicit stocks to inexperienced investors.  The proposed rule would require one who wishes to solicit a private offering to file a Form D before they engage in the advertising.

Potential Impact of New Rule

Lifting the ban on general solicitation will allow startups, venture captilists, EB-5 Regional Centers, and hedge funds to openly advertise that they are raising money in private offerings.  That should make it significantly easier for companies to raise financing and/or expand operations — the Rule still limits solicitation from accredited investors (for now, until the remaining part of the JOBS Act is implemented)

Investment is still limited to accredited investors worth more than $1 million liquid net worth, and fundraisers must take reasonable steps to ensure investors are in fact accredited. To help the SEC collect data on how investment will change, fundraisers have to file a Form D with the SEC at least 15 days before they begin general solicitation, and amend that Form D to state that they’re done soliciting within 30 days of finishing.

However, the lift on the Ban will create a significantly new and large pool of investors.

For more information, including access to the Final Rule and Proposal, please visit the SEC’s website which can be found here.


Supreme Court Issues Narrow Holding in Affirmative Action Case

By Brian Pasquale

In Fisher v. University of Texas at Austin, the Supreme Court of the United States considered the issue of racial classifications in education.  While many were hoping for a landmark decision, ultimately the Court held that the lower court did not apply the correct standard and remanded the case for further proceedings.


The admission program at the University has evolved in recent history.  Prior to 1997 the University considered two factors when evaluating an applicant; one score that was based off of their academic performance in high school as well as their standardized test scores, and the second score based on the applicant’s race.  The United States Court of Appeals for the Fifth Circuit held this system unconstitutional in 1996 because the system did not further any compelling government interest.[i]  The University adopted a new system to comply with the Court of Appeals holding and began using a system that substituted race with what an applicant’s potential contribution to the university would be.  The University titled this program the Personal Achievement Index (“PAI”).  The PAI measures a student’s leadership and work experience, awards, extracurricular activities, community service and other circumstances that shed light on a student’s background.  In addition to the PAI being implemented, the Texas State Legislature passed the Top Ten Percent Law, which granted admission to any student who placed in the top ten percent of their graduating class.  Following the Supreme Court’s decisions in Grutter v. Bollinger[ii] and Gratz v. Bollinger[iii], a third admission program was adopted which is the one that was challenged in the case at bar.[iv]  The new program included a student’s race as a component in the PAI score, asking students to classify themselves as one of five races.  After an applicant has been scored, they are placed on a grid with the Academic Index on the x-axis and the PAI on the y-index, students who are in a cell above a certain line are admitted and students in a cell below the line are denied admission.

Petitioner applied for admission to the University in 2008 and was denied admission.  She sued the University, claiming that the University’s program violated the Equal Protection Clause.  The District Court granted summary judgment to the University.  The United States Court of Appeals for the Fifth Circuit affirmed the decision holding that Grutter required courts to give deference to the University in both the benefit that they believe having a diverse student population brings to the University as well as whether the plan was applied to achieve the goal of achieving educational benefits by increasing the diversity of the student population.


The Court began by tracing the Court’s history on the issue of racial classification in education.  In Regents of Univ of Cal. V. Bakke[v] Justice Powell set out the standard by stating “any racial classification must meet strict scrutiny, for when government decisions touch upon an individual’s race or background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling government interest.”[vi]  Of the compelling interests that Justice Powell identified included the interest in the educational benefits that flow from a diverse student body, because it is not simply above race, but about benefiting the overall educational experience.  Gratz and Grutter added to Justice Powell’s point in Bakke, by stating that the process used to achieve the racial diversity must be subject to judicial review, and race cannot be used as a factor unless the admission process can withstand strict scrutiny.

The Court then took up the present case, and began by agreeing with the District Court and Court of Appeals that the Court should defer to the University’s experience and expertise in deciding that diversity would serve the University’s educational goals.  However, while the Court agreed with the lower courts on the first issue, they disagreed with them on the second.  According to the Court, once the use of diversity to further educational goals has been held to be consistent with strict scrutiny, the University must also pass a second test.  The second test is whether the program is “narrowly tailored to achieve the goal of furthering education.”  In essence, the University must have considered other alternative admission programs that do not take race into account and determine whether they could further their stated goal.  In addition to considering the alternative programs, if a program that does not involve race would have still allowed the University to achieve its goal, then the University may not consider race.  Due to the fact that the Court of Appeals did not apply the strict scrutiny standard correctly, the Court remanded the case.

[i] Hopwood v. Texas, 78 F.2d 932, 955 (1996)

[ii] 539 U.S. 306 (2003)

[iii] 539 U.S. 244 (2003).

[iv] In Grutter, the Court permitted the University of Michigan Law School to use race as a factor in the admission process because the University was not using a “quota system” where a set number of minorities had to be admitted.  In Gratz, the Court struck down The University of Michigan’s undergraduate admission program because the University automatically added points to an applicant if they were from a certain racial minority.

[v] 438 U.S. 305 (1978) (opinion of Powell. J)

[vi] Id. at 229

Highly Anticipated Fifth Amendment Decision by Supreme Court in Salinas v. Texas Leaves Many Disappointed

By Brian Pasquale


On December 18th, 1992, two men were shot and killed inside their home in Houston.  There were no witnesses but a neighbor informed the police that she had observed someone run out of the house and speed away in a dark-colored car.  The investigation led police to Mr. Salinas (“Petitioner”), who was at the victim’s house the previous night attending a party.  When police arrived at Petitioner’s house he agreed to give them his shotgun for ballistics testing and voluntarily go to the police station for questioning.

The interview at the police station was noncustodial and the Petitioner was not read his Miranda rights.  Throughout the interview the Petitioner answered all of the officer’s questions.  However, when the officer asked whether the Petitioner’s shotgun “would match the shells recovered at the scene of the murder,” Petitioner declined to answer and looked down at the floor and “began to tighten up.”  The prosecutor initially declined to prosecute due to a lack of evidence; however, several days later, police obtained a statement from a man who stated that he had heard Petitioner confess to the killings.  The Petitioner did not testify at trial, and key evidence from the State included the use of Petitioner’s reaction to the officer’s question during the interview.  After being found guilty, Petitioner argued that the use of his silence violated his Fifth Amendment right.  The Court of Appeals rejected Petitioner’s argument as did the Texas Court of Criminal Appeals.


Whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief?


One of the few exceptions to the principle that the Government has the right to everyone’s testimony is the privilege against self-incrimination.  However, one who wishes to use the protection must claim it at the time that he relies on it.  This restriction provides the government with an opportunity to either offer the suspect a grant of immunity or argue that the testimony could not be self-incriminating.  The Supreme Court has established two exceptions to this requirement that the suspect assert his right.  The first is that a defendant does not need to take the stand and assert the privilege at his own trial, and the second is when law enforcement coerces the statement and thus renders the privilege involuntary.

In the current case, the Court stated that is clear that neither of the exceptions apply to the Petitioner, as he voluntarily went with the police from his home and he was free to leave the interview at any time.  Thus, he was outside the scope of Miranda and the use of his silence by the prosecution did not violate the Fifth Amendment.


While many in the legal community were anticipating the Court’s decision in Salinas v. Texas, after the ruling was handed down many of those people were left disappointed.  The Issue that many were hoping to see be resolved was whether the Government could use a suspect’s reliance on the Fifth Amendment when the suspect had not already been arrested.  However the Court announced early in its opinion that it was not necessary to resolve that question because the Petitioner did not assert the privilege.

US Supreme Court: K-9 Dog Sniff Sufficient to Establish Probable Cause

On February 19, 2013, the Supreme Court decided the case of Florida v. Harris, and held that use of a drug dog to establish probable cause to search a vehicle does not violate the Fourth Amendment of the United States Constitution.

Facts: Respondent was pulled over by a law enforcement officer for a routine traffic stop.  While speaking to the respondent, the officer noticed that the respondent was becoming increasingly nervous and also observed an open beer can.  Respondent refused the officer’s request to search the vehicle; the officer subsequently executed a sniff test with his trained narcotics dog, Aldo.  The dog alerted at the driver’s side door, leading the officer to determine that he had probable cause to search the vehicle.  The search did not provide anything that the dog was trained to detect, but did reveal ingredients that are used to manufacture methamphetamine.  When the respondent was released on bail he was pulled over by the same officer who again had Aldo do a sniff of the vehicle, this time producing nothing.  The respondent moved to have the evidence from the stop suppressed, arguing that the officer did not have probable cause to search his vehicle based on the dog’s alert.  The trial court held that the officer had probable cause and denied the motion to suppress.  The respondent then entered a no-contest plea, reserving the right to appeal the trial court’s ruling.  After an intermediate state court affirmed, The Florida Supreme Court reversed.

Florida Supreme Court: The Florida Supreme Court held that the officer lacked probable cause to search the defendant’s vehicle under the Fourth Amendment.  The court went on to say that “When a dog alerts, the fact that the dog has been trained, and is certified, is simply not enough to establish probable cause.”  The court held that the State needed to produce a wider array of evidence to demonstrate a dog’s reliability.  The Florida Supreme Court gave several examples: the dog’s training and certification records; an explanation of the meaning of the particular training and certification; field performance records; and evidence concerning the experience and training of the officer handling the dog.

Supreme Court’s Ruling: The Court began by tracing the history of probable cause and establishing the foundation for the Courts decision.  The Court stressed that, in determining whether the State has met the probable cause standard, the Court has consistently looked to the “totality of the circumstances” test.  Foreshadowing its ultimate decision, the Court noted that in Gates, the Court abandoned the old test for assessing the reliability of informant’s tips “because it had devolved into a “complex superstructure of evidentiary and analytical rules.” (1)  The Court continued, describing probable cause as a “fluid concept-turning on the assessment of probabilities in any particular factual context-not readily, or even usefully, reduced to a neat set of legal rules.”  The Supreme Court determined that this is exactly what the Florida Supreme Court did in its decision, created a strict evidentiary checklist, which requires the state to mark off each item.

Rather than having the “strict evidentiary checklist” that the Florida Supreme Court determined was the best approach, the Supreme Court held that evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.  “If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume that the dog’s alert provides probable cause to search.”

Regarding a probable-cause hearing on a dog’s alert, the Court gave guidance to the lower courts on how these should be administered.  The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure.  After evaluating the proffered evidence to decide what all the circumstances demonstrate; if the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.  However, if the defendant has challenged the State’s case, then the court should weigh the competing evidence.  Overruling the Florida Supreme Court test, the Court once again stated that the question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonable prudent person think that a search would reveal contraband or evidence of a crime.

(1)    Illinois v. Gates, 462 U.S. 213, 235 (1983)