913 F.3d 356
3rd Cir.2019Background
- Three St. Croix residents (Bryan, Beberman, Francis) cruised on Adventure of the Seas (Aug 31–Sept 7, 2008); after stops in foreign ports they re-entered U.S. waters.
- CBP inspected the travelers’ cabins in St. Thomas based on TECS “lookout” entries recommending “100% exam”; searches lasted 5–10 minutes, occupants were asked to dress and wait in the hallway; no contraband was found.
- Officer Timothy Ogg created the TECS lookouts (Sept 5) after matching passenger names to prior TECS reports indicating drug-smuggling suspicions and noting the route’s history of narcotics seizures.
- Travelers sued under Bivens (Fourth Amendment) against Ogg and the searching officers, and under the FTCA against the United States for invasion of privacy, false imprisonment, and emotional distress.
- District Court granted summary judgment for defendants; on appeal the Third Circuit affirmed, holding officers entitled to qualified immunity and the FTCA claims barred by the discretionary-function exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether cabin searches on cruise ship at first U.S. port are routine or nonroutine border searches requiring reasonable suspicion | Searches of private cabins are highly intrusive and require reasonable suspicion (per Whitted) | Border-search doctrine permits routine searches without reasonable suspicion; officers acted on TECS lookouts and routine border authority | Court did not decide underlying constitutional violation; applied qualified immunity analysis instead and treated new Whitted rule as not clearly established at time of searches |
| Whether Officer Ogg’s creation of TECS lookouts violated Fourth Amendment | Ogg’s lookout recommending 100% cabin exams triggered unconstitutional searches | Ogg acted on existing TECS reports and discretionary border-enforcement judgment | Ogg entitled to qualified immunity because Whitted had just been decided and the rule was not clearly established or communicated to officers |
| Whether St. Thomas officers who executed the searches violated clearly established law | Execution of searches violated the (new) Whitted rule requiring reasonable suspicion | Officers reasonably relied on TECS lookouts and had no clear notice that the conduct was unconstitutional | St. Thomas officers entitled to qualified immunity for same reasons as Ogg |
| Whether FTCA claims survive because officers violated clearly established constitutional rights | Even if discretionary, sovereign immunity waiver applies when officers violate clearly established constitutional rights | FTCA’s discretionary-function exception bars claims; officers’ actions were discretionary and no clearly established violation occurred | FTCA claims barred by discretionary-function exception because no clearly established constitutional violation was shown |
Key Cases Cited
- United States v. Whitted, 541 F.3d 480 (3d Cir. 2008) (held cruise-ship cabin searches at first U.S. port are nonroutine and may require reasonable suspicion; TECS entries can supply suspicion)
- United States v. Montoya de Hernandez, 473 U.S. 531 (1985) (framework for border-search reasonableness and special border interests)
- United States v. Flores-Montano, 541 U.S. 149 (2004) (Congress and courts grant broad executive authority for routine border searches)
- Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (qualified-immunity standard requires clearly established law)
- Harlow v. Fitzgerald, 457 U.S. 800 (1982) (government officials shielded from money damages absent violation of clearly established statutory or constitutional right)
- White v. Pauly, 137 S. Ct. 548 (2017) (clearly established law must be particularized to the facts)