Martinez et al v. United States of America

Filing 150

REPORT AND RECOMMENDATION: The Magistrate Judge recommends the District Court, enter an order DENYING the 127 Motion for Summary Judgment filed by the defendant on 5/17/17. Any party may serve and file written objections within 14 days of being ser ved with a copy of this report and recommendation. If objections are not timely filed, the party's right to de novo review may be waived. Local Rules permit the filing of a response to an objection. They do not permit the filing of a reply to a response without the permission of the District Court. Signed by Magistrate Judge Leslie A Bowman on 10/11/17. (BAC)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Armando Nieves Martinez, et al.,

10

Plaintiffs,

11

vs.

12

United States of America,

13

Defendant.

14

)
)
)
)
)
)
)
)
)
)
)

No. CV 13-955 TUC CKJ (LAB)
REPORT AND RECOMMENDATION

15

Pending before the court is a motion for summary judgment filed by the defendant

16

on May 17, 2017. (Doc. 127) The plaintiff filed a response on July 28, 2017. (Doc. 139);

17

(Doc. 140). The defendant filed a reply on August 22, 2017. (Doc. 143); (Doc. 144)

18

The plaintiff, Armando Nieves Martinez, claims he was illegally seized at a vehicle

19

checkpoint and then browbeaten into falsely confessing to drug smuggling by agents of the

20

Department of Customs and Border Protection. (Doc. 20) He and members of his family bring

21

this action pursuant to the Federal Tort Claims Act (FTCA). Id. The defendant moves that this

22

court dismiss the action pursuant to Rule 56, FED.R.CIV.P. (Doc. 127) The defendant argues

23

primarily that the agents’ actions fall within the discretionary function exception to the FTCA,

24

which provides a limited waiver of the government’s sovereign immunity to suit. Id.

25

The case has been referred to Magistrate Judge Bowman for report and

26

recommendation pursuant to the Local Rules of Practice. LRCiv 72.1. A hearing on the motion

27

was held on October 4, 2017. (Doc. 149)

28

1

The court recommends that the District Court, after its independent review of the

2

record, deny the motion. The plaintiffs’ claims are based on actions taken by the agents that do

3

not fall within the discretionary function exception.

4
5

There are material facts in genuine dispute; the movant is not entitled to judgment
as a matter of law. See Fed.R.Civ.P. 56(a).

6
7

Standard of Review: Summary Judgment

8

Summary judgment is available only “if the movant shows that there is no genuine

9

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

10

R. Civ. P. 56(a). There is a genuine dispute “if the evidence is such that a reasonable jury could

11

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

12

106 S.Ct. 2505, 2510 (1986).

13

The initial burden rests on the moving party to point out the absence of any genuine

14

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553

15

(1986). “Where the moving party will have the burden of proof on an issue at trial, the movant

16

must affirmatively demonstrate that no reasonable trier of fact could find other than for the

17

moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). “Where

18

the non-moving party bears the burden of proof at trial, the moving party need only prove that

19

there is an absence of evidence to support the non-moving party’s case.” In re Oracle Corp.

20

Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010).

21

Once initially satisfied, the burden shifts to the nonmovant to demonstrate through

22

the production of probative evidence that an issue of fact remains to be tried. Celotex Corp.,

23

477 U.S. at 324, 106 S.Ct. at 2553. “If a reasonable jury viewing the summary judgment record

24

could find by a preponderance of the evidence that [the plaintiffs are] entitled to a verdict in

25

[their] favor, then summary judgment [is] inappropriate; conversely, if a reasonable jury could

26

not find liability, then summary judgment [is] correct. Cornwell v. Electra Cent. Credit Union,

27

439 F.3d 1018, 1027-28 (9th Cir. 2006).

28
-2-

1

“In judging evidence at the summary judgment stage, the court does not make

2

credibility determinations or weigh conflicting evidence.” Soremekun v. Thrifty Payless, Inc.,

3

509 F.3d 978, 984 (9th Cir. 2007). “Rather, it draws all inferences in the light most favorable

4

to the nonmoving party.” Id.

5
6

FACTUAL AND PROCEDURAL BACKGROUND1

7

On August 18, 2011, the plaintiff, Armando Nieves Martinez, his wife, and two

8

children drove north from their home in Caborca, Sonora into Arizona intending to do some

9

shopping. (Doc. 139-1, p. 1) Nieves is a grape farmer. Id. His annual gross income is around

10

three million dollars. Id.

11

Prior to the trip, Nieves’s vehicle had been in the repair shop for about ten days.

12

(Doc. 139-1, p. 2) Nieves’s wife had been in an accident, and part of the front end had been

13

damaged. Id.

14

The family encountered two checkpoints on their trip northwards. (Doc. 139-1, p.

15

2) They passed the first without incident, as far as they knew, and proceeded north toward the

16

second. Id.

17

In fact, the Disrupt Unit of the U.S. Border Patrol had been tipped to expect a

18

vehicle coming north smuggling drugs. (Doc. 139-1, p. 7) As it turned out, Nieves’s car fit the

19

description of the suspect vehicle. Id., p. 8 Personnel at the first checkpoint notified Agent

20

Casillas, of the Disrupt Unit, that a vehicle fitting the suspect description passed the first

21

checkpoint. Id., p. 9 The vehicle was permitted to proceed on to the second checkpoint because

22

the first checkpoint had no K9. Id., p. 9

23

Agent Casillas notified agents at the second checkpoint that they were expecting a

24

vehicle smuggling hard narcotics in a hidden compartment. (Doc. 139-1, p. 8) Casillas insists

25

that a description of the vehicle was not disclosed outside the Disrupt Unit to ensure the

26
27
28

1

Some of the facts are disputed, but the court recites them in the light most favorable to the
nonmovant, as it must on a motion for summary judgment. Soremekun v. Thrifty Payless, Inc., 509
F.3d 978, 984 (9th Cir. 2007).
-3-

1

impartiality of the agents at the checkpoint, but someone gave a description of the vehicle to

2

Agent Roden, the K9 Agent. Id., pp. 8, 9

3

Agent Roden saw the vehicle he was waiting for and “ran the dog.” (Doc. 139-1,

4

p. 9) According to Roden, the dog “alerted” to the front grill area of the vehicle. Id. Because

5

of the alert, Roden instructed Agent Roman to send the vehicle to the secondary inspection area.

6

Id. If the dog had not alerted, he would have let the vehicle go. Id.
The Nieveses were removed from the vehicle, and Roden again conducted an

7
8

exterior sniff of the vehicle. (Doc. 139-1, p. 10) He obtained the same results. Id.

9

The Nieveses’ expert witness, Edward Dobbertin, Jr., opined that the “detection

10

canine team’s search of the plaintiff’s vehicle was not complete, thorough or within established

11

and acceptable canine training, handling, utilization and/or practices or procedures and

12

techniques . . . .” (Doc. 139-1, p. 11) Dobbertin opined that the dog in this case “sniffed and

13

had indicators,” but did not give a full alert. Id. A “sniff” occurs when a dog’s posture changes,

14

its breathing changes, and it gives “a head shot.” Id., p. 12 The term “alert” is used when a dog

15

gets as close as possible to the source of the odor and then sits or lies down. Id. To conduct a

16

proper search, the dog should have been given a chance to determine where the odor was

17

coming from by letting the dog “search the wheel wells, underneath the vehicle, on top of the

18

doors, the hood, the grill, and then back away from the vehicle” to get into a position to catch

19

odors that are settling down. Id. If the source of the odor is not found, the odor could come

20

from contact transfer or even from another vehicle. Id.

21

The Nieveses were brought to the Ajo Border Patrol station. (Doc. 139-1, p. 14)

22

The vehicle was taken to the garage. Id. Agent Roden asked Agent Garcia Mendez to assist

23

with the search. Id., p. 16 Mendez was a member of the Disrupt Unit. Id., p. 17 Mendez

24

checked the windshield wiper container because he had been taught in the recent Desert Snow

25

training session that drugs could be hidden there. Id., p. 17 The fluid looked cloudy, which

26

Mendez believed was an indication of narcotics. Id. He tested the fluid with Agent Watson.

27

Id.

28
-4-

1

Watson had a tool kit, which was only provided to K9 handlers. (Doc. 139-1, p. 18)

2

Mendez took a wooden rod, or stick, from Watson’s kit, wrapped a piece of paper towel around

3

the end of the stick, and dipped it in the liquid. Id. He removed the paper and allowed it to dry

4

on a metal bench that he cleaned with an unknown spray solvent. Id., pp. 18, 21 He said he did

5

two tests and “from my recollection, I recall both being positive.” Id., pp. 18-19

6

Mendez acknowledged that the drug kit instructions state that, “the choice of towel

7

is critical. Unscented, uncolored filtered paper is ideal. Never use brown paper, hand towels

8

or newspapers.” (Doc. 139-1, p. 21)

9

Agent Devin Reno stated that the first test was negative, but the test was performed

10

again sampling liquid at the bottom of the tank. (Doc. 139-1, p. 19) The second test was

11

positive. Id. Reno advised Casillas that one test was negative and one was positive. Id.

12

Mendez acknowledged that the instructions for the field test kit state that test U must

13

be performed after test A to ensure that the substance is methamphetamine. (Doc. 139-1, p. 23)

14

Mendez did not know if he had done the U test. Id. He could provide no evidence that he did

15

so. Id., p. 24 There is photographic evidence that tests A, B, and C or G were performed. Id.,

16

p. 26

17

Mendez explained that he was trained to use the test kits at the Academy in 2008-

18

2009, two or three years ago. (Doc. 139-1, p. 23) He had a proficiency test at that time, but not

19

since then. Id.

20

The Nieveses’ expert witness, Dr. Leo Kadehjuan, opined that the results obtained

21

by Mendez “do not support a presumption of methamphetamine being in the windshield washer

22

fluid. . . .” (Doc. 139-1, p. 25) He believes that test A was not performed in accordance with

23

the manufacturer’s specifications and there is no evidence that test U was performed at all. Id.,

24

pp. 25, 26, 31, 32 “In order for these tests to have scientific weight, they need to be performed

25

according to the manufacturer’s instructions . . . .” Id.

26

Nieves was separated from his family and placed in handcuffs. (Doc. 139-1, p. 2)

27

An agent named Victor shouted at him accusing him and all Mexicans of being drug traffickers.

28

Id., p. 3 Nieves believed he was going to be physically attacked by Victor. Id.
-5-

1

Nieves was then transported to a windowless cell for about two hours. (Doc. 139-1,

2

p. 3) Victor came in and out of the cell shouting and using foul language. Id. He stated that

3

drugs had been seen in the car with X-rays. Id. Victor demanded a confession stating five or

4

six times, “Your family’s going to go to prison. We’re going to take your wife to a prison in

5

Kentucky. We’re going to put your son in a federal prison. And your daughter, the U.S.

6

government is going to take charge of her. And we’re going to give you from 15 to 30 years

7

of prison.” Id., p. 3

8

Nieves’s son, 18-year-old Armando, Jr., told Nieves that Victor made the same

9

threats to him. Id., p. 4 Armando, Jr., was also afraid that Victor was going to hit him. Id.

10

Victor told Armand, Jr., that he should tell his father to have the “balls” to take responsibility.

11

Id. Victor took Armando, Jr., to his father’s cell once or twice. Id.

12

Nieves was taken to a second cell and was told that methamphetamine was found

13

in the windshield wiper container. Id. Nieves asked to speak to his wife. Id. Eventually,

14

Victor agreed to their meeting. Id., p. 5

15

Nieves’s wife told him that she had received the same threats. Id. She and her

16

daughter had been questioned by a female agent who made derogatory statements about the

17

family. Id.

18

Nieves and his wife decided that he should offer a false confession. Id. He told

19

Victor, “Okay, I will be the responsible party here in this and just so you can set my family free

20

and prevent them from going to prison.” Id. The family was released and Nieves was

21

transported to Phoenix. Id., p. 6

22

Victor and a driver transported Nieves to Phoenix by car (Doc. 139-1, p. 6) During

23

the drive, Victor and the driver stated that they needed additional information. Id. Nieves

24

stated that he had no information and that he offered a false confession to save his family. Id.

25

Victor told Nieves that if he did not provide additional information his family would be brought

26

back to the Ajo station. The driver screamed in English that if Nieves did not provide the

27

information, his “fucking family is going to prison.” Id.

28
-6-

1

Nieves then added details to his statement such as the amount of money to be paid

2

and the location of the drop off place. Id., p. 6-7 Nieves told Victor about six times that the

3

information was false. Id., p. 7

4

The Nieveses’ expert witness, Dr. Richard A. Leo, explained how an innocent

5

suspect could give a false confession based on how the interrogation was conducted. (Doc. 139-

6

1, pp. 32-35) He opined that Nieves’s false confession would be explained by his description

7

of how he was isolated and browbeaten by the agents. (Doc. 139-1, p. 34) He further opined

8

that the agents “should have had a suspicion that this was likely a false confession” if they were

9

aware of how the investigation and interrogation had been conducted. Id., p. 37

10

The windshield washer fluid was subsequently sent to a proper DEA laboratory.

11

(Doc. 139-1, p. 43) On September 22, 2011, Kathryn Stevens, a DEA forensic chemist,

12

informed Agent Derryberry that there were no drugs in the fluid. Id. Derryberry ordered a re-

13

inspection of the vehicle. Id. The vehicle was searched with a K9, fiber optic scopes, and

14

additional tools. Id. No drugs were found. Id. Nieves and the vehicle were released on

15

October 14, 2011. Id.

16

Nieves and his family subsequently brought this action pursuant to the Federal Tort

17

Claims Act. (Doc. 1) They filed an amended complaint on August 19, 2014. (Doc. 20) They

18

claim causes of action for assault, intentional infliction of emotional distress, negligence and

19

gross negligence, and false imprisonment. (Doc. 20)

20

On May 17, 2017, the government filed the pending motion for summary judgment.

21

(Doc. 127) It argues mainly that the plaintiffs’ claims are based on actions subject to the

22

FTCA’s discretionary function exception and therefore the court lacks subject matter

23

jurisdiction. They further argue there is no evidence to support the plaintiffs’ assault claim.

24

The plaintiffs filed a response, and the government filed a reply.

25
26

The Federal Tort Claims Act

27

The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671, et seq., “provides

28

a limited waiver of the sovereign immunity of the United States for torts committed by federal
-7-

1

employees acting within the scope of their employment.” Nurse v. United States, 226 F.3d 996,

2

1000 (9th Cir. 2000). The government accepts liability “under circumstances where the United

3

States, if a private person, would be liable to the claimant in accordance with the law of the

4

place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

5

A claim brought pursuant to the FTCA, however, may not be based on “the exercise

6

or performance or the failure to exercise or perform a discretionary function or duty on the part

7

of a federal agency or an employee of the Government, whether or not the discretion involved

8

be abused.” 28 U.S.C. § 2680(a). This provision is known as the “discretionary function

9

exception.” It is the government’s burden to prove that the exception applies. Gonzalez v. U.S.,

10

814 F.3d 1022, 1027 (9th Cir. 2016).

11

“In order to determine whether the discretionary function exception applies, the

12

court must engage in a two-step inquiry.” Nurse v. United States, 226 F.3d 996, 1001 (9th Cir.

13

2000). “First, the court must determine whether the challenged conduct involves an element

14

of judgment or choice.” Id. “Second, if the conduct involves some element of choice, the court

15

must determine whether the conduct implements social, economic or political policy

16

considerations.” Id. This is the type of conduct that the discretionary function exception was

17

designed to shield.

18

The discretionary function exemption prevents “judicial ‘second-guessing’ of

19

legislative and administrative decisions grounded in public policy.” Nurse, 226 F.3d at 1001

20

(internal punctuation removed). “When a statute or regulation allows a federal agent to act with

21

discretion, there is a ‘strong presumption’ that the authorized act is based on an underlying

22

policy decision.” Id. (citing United States v. Gaubert, 499 U.S. 315, 324, 111 S.Ct. 1267, 1274

23

(1991)). “[T]he challenged decision need not actually be grounded in policy considerations so

24

long as it is, by its nature, susceptible to a policy analysis.” Id. (internal punctuation removed).

25

“The determination of whether given conduct falls within the discretionary function exception

26

must focus on the nature of the conduct, rather than the status of the actor.” Id. (internal

27

punctuation removed).

28
-8-

1

DISCUSSION

2

The government argues that the plaintiffs’ claims fail due to the discretionary

3

function exception to the limited waiver of sovereign immunity granted by the Federal Tort

4

Claims Act. (Doc. 127) The court finds that the plaintiffs’ claims turn on actions that do not

5

fall within the exception. Accordingly, the court concludes that the motion should be denied.

6

The government maintains that the agents’ actions were discretionary and subject

7

to the exception, and it is correct up to a point. The conduct of a criminal investigation is

8

ordinarily a matter of discretion. See Casillas v. United States, 2009 WL 735193, at *12 (D.

9

Ariz. 2009), report and recommendation adopted, 2009 WL 735188 (D. Ariz. 2009)

10

(“Generally, judicial review of alleged negligent investigation by law enforcement is foreclosed

11

by the discretionary function exception.”) And, this case is no exception. The agents’ decision

12

to send the Nieveses’ vehicle to the second checkpoint was discretionary. At the second

13

checkpoint, the agents’ decision to use the K9 was also discretionary, likewise the decision to

14

field test the windshield wiper fluid for the presence of drugs. However, once these decisions

15

were made, the agents were not at liberty to conduct these procedures in a negligent or slipshod

16

manner. See, e.g., Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S. Ct. 122, 126-27

17

(1955) (“The Coast Guard need not undertake the lighthouse service. But once it exercised its

18

discretion to operate a light on Chandeleur Island and engendered reliance on the guidance

19

afforded by the light, it was obligated to use due care to make certain that the light was kept in

20

good working order . . . .”); Cestonaro v. United States, 211 F.3d 749, 757 (3rd Cir. 2000)

21

(“Even if there was protected discretion for the National Park Service’s decision to maintain

22

parking at the Hospital Street lot, that does not answer whether subsequent decisions were also

23

protected.”); Patel v. United States, 806 F. Supp. 873, 878 (N.D. Cal. 1992) (“The DEA’s

24

decisions to investigate the alleged illegal activity, to obtain the search warrant, when and where

25

to serve the warrant, and to use the MERGE unit personnel to execute the warrant are of the sort

26

that are based on public policy considerations. However, the officers’ decisions to use

27

flammable tear gas projectiles (instead of non-flammable projectiles) in an amount sufficient

28
-9-

1

to completely destroy the structure at the scene were not based on considerations rooted in

2

social, economic or political policy.”).

3

A K9 “alert” ordinarily constitutes probable cause to search a vehicle. See Florida

4

v. Harris, 568 U.S. 237, 247, 133 S. Ct. 1050, 1057-58 (2013). That rule, however, assumes

5

that the K9 investigation was performed in a manner calculated to ensure that the alert was

6

reliable. Id. The K9 handler in this case was aware of the consequences of a positive alert and

7

was obligated to use due care in his performance of that investigation. A reasonable trier of

8

fact, however, could conclude that the K9 search in this case was not performed with the

9

appropriate care.

10

Drawing all inferences in the light most favorable to the plaintiffs, a reasonable trier

11

of fact could conclude that there were no drugs in the vehicle. The K9’s “alert” therefore was

12

a false positive probably due to the negligent handling of the dog. The handler should have

13

permitted the dog an opportunity to find the source of the scent that caused the dog to “sniff.”

14

If he had done so, the dog probably would have failed to make a complete “alert,” and the

15

agents would have realized that the vehicle contained no drugs. The agent’s decision to stop

16

the investigation after the dog signaled a “sniff” is not the type of decision that “implements

17

social, economic or political policy considerations.” See Nurse v. United States, 226 F.3d 996,

18

1001 (9th Cir. 2000).

19

The agents’ decision to field test the windshield washer fluid for drugs was a

20

discretionary choice. However, having made that choice, the agents were obliged to perform

21

the test in a manner calculated to ensure its accuracy, that is, to follow the instructions on the

22

kit. A reasonable trier of fact could conclude that the agents did not do that. A reasonable trier

23

of fact could find that the agents failed to perform the test in accordance with the kit’s

24

instructions, in particular, they failed to perform the U test, without which, the test had no

25

scientific value. Presumably, if the agents had performed the field test in accordance with the

26

instructions, the test would have shown that there were no methamphetamines in the windshield

27
28
- 10 -

1

washer fluid. The agents’ decision to ignore the kit’s instructions was not the type of policy

2

choice shielded by the discretionary function exception.

3

The agents’ conduct during the interrogations contains a similar mix of discretionary

4

and non-discretionary choices. Certainly the decision to interrogate the Nieveses is one subject

5

to policy considerations. But having decided to interrogate them, the agents should have

6

conducted those interrogations in a way calculated to ensure that the confessions secured were

7

reliable. Here, a reasonable trier of fact could conclude that there were no drugs in the vehicle

8

and therefore Nieves’s confession was false. One could further conclude, based on the

9

plaintiffs’ expert’s testimony, that Nieves offered this false confession because the agents

10

employed techniques that run the unnecessary risk of eliciting a false confession. Their decision

11

to use these techniques was not the type of decision that “implements social, economic or

12

political policy considerations.” See Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000).

13

The court finds that the plaintiffs’ claims turn on actions that do not fall within the

14

discretionary function exception: whether the K9 investigation was performed with the

15

appropriate due care, whether the windshield washer fluid was tested with the appropriate due

16

care, and whether the interrogation was conducted with the appropriate due care. Accordingly,

17

the court finds that the government’s motion for summary judgment should be denied.

18

The government argues in the alternative that the agent’s actions were entirely

19

discretionary because “[n]either the federal statute nor the relevant regulations and policies

20

contain a mandatory provision – that is, a provision that ‘specifically prescribes a course of

21

action for an employee to follow.’” (Doc. 127, p. 10) (citing Sabow, 93 F.3d at 1451). The

22

government highlights an important step in the discretionary function analysis, but this one step

23

is not the entire test.

24

In Sabow, the court of appeals stated that the discretionary function exception does

25

not apply “if a federal statute, regulation, or policy specifically prescribes a course of action for

26

an employee to follow.” Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996). If such

27

a “statute, regulation, or policy” can be identified, then the analysis is complete – the exception

28
- 11 -

1

does not apply. If such a directive cannot be found, however, the analysis is not over. Then,

2

the court must go to the second step and consider “whether the judgment is of the kind that the

3

discretionary function exception was designed to shield.” Gonzalez v. U.S., 814 F.3d 1022,

4

1027 (9th Cir. 2016); see also Cestonaro v. United States, 211 F.3d 749, 753 (3rd Cir. 2000).

5

Assuming the Nieveses cannot identify a specific “federal statute, regulation or policy” that

6

cabins the discretion of the agents, the court still must decide whether the agents’ decisions were

7

the type of decisions that the discretionary function exception was designed to protect. And, as

8

the court explained above, some were, and some were not. Moreover, the plaintiffs have

9

identified a specific legal mandate that cabins the agents’ discretion – the Constitution.

10

At oral argument, the government conceded that agents do not have discretion to

11

violate the Constitution, which is what the plaintiffs allege here. See Castro v. United States,

12

608 F.3d 266, 271-72, 275 n.1 (5th Cir. 2010) (Stewart, J. dissenting) (collecting cases)

13

Viewing the evidence in the light most favorable to the non-movant, a reasonable trier of fact

14

could conclude that the agents’ investigation was so slipshod that the Nieveses were held

15

without probable cause in violation of their Fourth Amendment2 rights. And if the Nieveses’

16

Fourth Amendment rights were violated, the agents’ actions do not fall within the discretionary

17

function exception. See Galvin v. Hay, 374 F.3d 739, 758 (9th Cir. 2004) (“[F]ederal officials

18

do not possess discretion to violate constitutional rights.”). Whether or not the agents had

19

probable cause is a genuine issue of material fact. Summary judgment is not appropriate.

20

The government argues to the contrary that the agents did have probable cause, and

21

the court should grant summary judgment on the false imprisonment claim even if the

22

discretionary function exception does not apply. (Doc. 127, pp. 15-16) The government notes

23

that the K9 alerted, the field test was positive, and Nieves offered a confession.

24

False imprisonment is “the detention of a person without his consent and without

25

lawful authority.” Cullison v. City of Peoria, 120 Ariz. 165, 169, 584 P.2d 1156, 1160 (1978).

26
27
28

2

The court does not reach the plaintiffs’ argument that the agents’ actions also violated their
right to due process. (Doc. 139, pp. 13, 34); but see, Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807
(1994).
- 12 -

1

In this case, one could conclude that the government did have probable cause for the detention

2

if one were to take the evidence in the light most favorable to the government. That, however,

3

is not the rule.

4

Taking the evidence in the light most favorable to the plaintiffs, a reasonable fact

5

finder could conclude that the government did not have probable cause. A K9 alert may provide

6

probable cause but only if the circumstances surrounding the alert are indicative of reliability.

7

Here, a reasonable trier of fact could find the opposite. Similarly, a reasonable fact finder could

8

conclude the drug test was not performed in accordance with the kit’s directions and had no

9

scientific value. Finally, a reasonable fact finder could conclude that Nieves’s qualified

10

“confession” was of little probative value. A reasonable trier of fact could conclude that the

11

Nieveses were held without lawful authority.

12

The government further argues that the false imprisonment claim fails because the

13

Magistrate Judge found probable cause to detain Nieves citing to Haupt v. Dillard, 17 F.3d 285,

14

290 (9th Cir. 1994). (Doc. 127, p. 14) The government concedes that Haupt does not apply

15

where “the evidence known to the arresting officers is materially different from the evidence

16

presented at the preliminary hearing.” (Doc. 127, p. 14) (citing Wige v. City of Los Angeles,

17

713 F.3d 1183, 1185-86 (9th Cir. 2013). Assuming without deciding that Haupt and Wige apply

18

here, the court finds that a reasonable trier of fact could concluded that the arresting officers had

19

evidence materially different from the evidence presented in Agent Derryberry’s affidavit,

20

which apparently was the document upon which the Magistrate Judge found probable cause.

21

(CR 11-1812 PHX DBC, Doc. 1, pp. 2-8) The affidavit states that the K9 “alerted” but does not

22

explain that the handler was predisposed to believe that the vehicle carried drugs and did not

23

allow the K9 to complete the alert. The affidavit states that the windshield wiper fluid tested

24

positive for methamphetamine without stating that the instructions on the test kit were not

25

followed. The affidavit states that Nieves confessed to drug trafficking without stating that

26

Nieves said his confession was untrue and that details in the confession were supplied by the

27

arresting agents.

28
- 13 -

1

The government further argues the plaintiffs’ claim of intentional infliction of

2

emotional distress fails because the plaintiffs are unable to produce evidence that the agents

3

acted in an extreme or outrageous manner. (Doc. 127, p. 16)

4

In Arizona, “[t]he tort of intentional infliction of emotional distress requires proof

5

of three elements: [f]irst, the conduct by the defendant must be ‘extreme’ and ‘outrageous’;

6

second, the defendant must either intend to cause emotional distress or recklessly disregard the

7

near certainty that such distress will result from his conduct; and third, severe emotional distress

8

must indeed occur as a result of defendant’s conduct.” Citizen Publishing Co. v. Miller, 210

9

Ariz. 513, 516, 115 P.3d 107, 110 (2005).

10

Nieves offers evidence that he was browbeaten into offering a false confession by

11

threats to his family, misrepresentation of the evidence against him, and extended periods of

12

isolation and interrogation during which he feared he was going to be beaten. This is sufficient.

13

See, e.g., Campbell v. Safeway, Inc., 332 F. Supp. 2d 1367, 1376 (D. Or. 2004) (Motion for

14

summary judgment on the plaintiff’s claim for intentional infliction of emotional distress was

15

denied where the plaintiff offered evidence that she was browbeaten into confessing to stealing

16

$800 on scanty evidence by threats of jail, threats of physical violence, and threats that she

17

would not be home in time to meet her children returning from school.).

18

The government suggests that the agent’s conduct should be seen as less egregious

19

“given the context of an ongoing criminal investigation into a suspected felony.” (Doc. 127,

20

p. 16) It is possible that the trier of fact might think so, but the government makes no showing

21

that she must do so as a matter of law. It is just as probable, if not more so, that the trier of fact

22

would hold a trained government agent to an even higher standard than a member of the general

23

public.

24

The government further argues that it is entitled to summary judgment on the

25

Nieveses’ assault claim. (Doc. 127, pp. 16-17) “A person commits the tort of assault if he acts

26

with intent to cause another harmful or offensive contact or apprehension thereof, and the other

27

person apprehends imminent contact.” Garcia v. United States, 826 F.2d 806, 814 n.9 (9th Cir.

28
- 14 -

1

1987) (citing Restatement, Second, Torts, § 21). The government argues there is no evidence

2

to support the Nieveses assault claim. The government notes that “[w]ords alone do not make

3

the actor liable for assault.” (Doc. 127, p. 17) (citing Restatement, Second, Torts § 31)

4

Here, however, there is evidence of more than mere words. Nieves presents

5

evidence that he was separated from his family, handcuffed, and placed in the back of a vehicle.

6

(Doc. 139-1, pp. 2-4) Agent Victor was “shouting and accusing him and all Mexicans of being

7

drug traffickers . . . .” (Doc. 139-1, p. 3) Later, Nieves was placed in a windowless cell and

8

subject to continued accusations, shouting, and foul language. Id. Nieves states that he

9

believed that Agent Victor was going to strike him. Id. A reasonable trier of fact could

10

conclude that Agent Victor displayed animus toward Nieves and then placed him in cell where

11

he would have unfettered access to Nieves, where no one would be able to help him, and where

12

no one would be witness to whatever transpired. Nieves makes out a prima facie claim for

13

assault. The court further notes that Armando Jr. stated he was subject to similar conditions and

14

that he also believed Agent Victor was going to strike him. (Doc. 139-1, p. 4) Armando Jr.

15

“had just been released for neurological treatment for anxiety” and was a “nervous person,

16

hyperactive, scar[ed], afraid.” Id. This is further evidence in support of the plaintiffs’ claim for

17

assault. See Restatement, Second, Torts § 27 (“If an act is intended to put another in

18

apprehension of an immediate bodily contact and succeeds in so doing, the actor is subject to

19

liability for an assault although his act would not have put a person of ordinary courage in such

20

apprehension.”).

21

In its reply brief, the government addresses the K9 alert specifically and argues that

22

the plaintiffs’ expert opinion does not create a genuine dispute of material fact because his

23

conclusion that the K9 did not properly alert “is based on a misrepresentation of Agent Roden’s

24

testimony and is otherwise speculative and lacking in foundation.” (Doc. 143, p. 4); see also

25

(Doc. 144, p. 2)3 The court does not agree. The plaintiffs’ expert opined that the K9 handler

26
27
28

3

The defendant also objects to the plaintiffs’ experts, Dobbertin and Leo, offering an opinion
on whether the agents lacked probable cause to hold the Nieveses. (Doc. 144) This court does not rely
- 15 -

1

failed to allow the dog to complete the alert by finding the source of the smell. His opinion was

2

based on the handler’s description of the K9 search in addition to the apparently uncontradicted

3

evidence that the vehicle contained no drugs. The handler, nevertheless, stated that the dog

4

alerted. The expert was entitled to offer an explanation for why a handler would state that the

5

dog alerted on a vehicle that contained no drugs. His conclusion that the handler was negligent

6

based on his training and experience is permissible particularly where, as here, the government

7

offers no alternate explanation.

8

The government further argues that the plaintiffs are making the same argument that

9

the Ninth Circuit rejected in U.S. v. Thomas, 726 F.3d 1086, 1097-98 (9th Cir. 2013). The court

10

does not agree with the government’s reading of that case.

11

In Thomas, the defendant argued that if a dog does not complete its alert, than the

12

dog’s incomplete alert cannot give rise to probable cause. U.S. v. Thomas, 726 F.3d 1086 (9th

13

Cir. 2013). The Ninth Circuit declined to adopt a per se rule that only a complete alert can give

14

rise to probable cause. Id. The court held that, “[w]hether a particular dog displays enough

15

signaling behavior [for probable cause] will depend on the facts and circumstances of each

16

case.” Thomas, 726 F.3d at 1098.

17

Here, the plaintiffs argue that the facts and circumstances surrounding the K9

18

investigation indicate that the “sniff” reported by the handler was not a reliable indicator of

19

drugs and that probable cause was not established. The handler had earlier received a tip and

20

expected to find drugs in the vehicle. Consequently, he was predisposed to accept the dog’s

21

initial movements as positive proof without completing the alert. The government does not

22

argue that time was of the essence, or that the K9 was desperately needed elsewhere and could

23

not spend any more time with the Nieveses’ vehicle. Taking the facts in the light most

24

favorable to the Nieveses, a reasonable trier of fact could conclude that the dog handler was

25

negligent and reached the incorrect conclusion that the vehicle held drugs, when it did not. The

26
27
28

on those opinions and therefore does not reach the defendant’s evidentiary objections.
- 16 -

1

plaintiffs’ argument is not foreclosed by the holding in Thomas. See U.S. v. Thomas, 726 F.3d

2

1086 (9th Cir. 2013).

3
4

RECOMMENDATION:

5

The Magistrate Judge recommends the District Court, after its independent review

6
7
8

of the record, enter an order
DENYING the motion for summary judgment filed by the defendant on May 17,
2017. (Doc. 127)

9

Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections

10

within 14 days of being served with a copy of this report and recommendation. If objections

11

are not timely filed, the party’s right to de novo review may be waived. The Local Rules permit

12

the filing of a response to an objection. They do not permit the filing of a reply to a response

13

without the permission of the District Court.

14
15

DATED this 11th day of October, 2017.

16
17
18
19
20
21
22
23
24
25
26
27
28
- 17 -