FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`ARMANDO NIEVES MARTINEZ;
`AMELIA PESQUEIRA ORTEGA, on
`their behalf and on behalf of R.N.P.;
`ARMANDO NIEVES PESQUEIRA,
`Plaintiffs-Appellants,
`
`No. 19-16953
`
`D.C. No.
`4:13-cv-00955-
`CKJ-LAB
`
`v.
`
`UNITED STATES OF AMERICA,
`Defendant-Appellee.
`
`OPINION
`
`Appeal from the United States District Court
`for the District of Arizona
`Cindy K. Jorgenson, District Judge, Presiding
`
`Argued and Submitted December 9, 2020
`San Francisco, California
`
`Filed May 11, 2021
`
`Before: William A. Fletcher and Sandra S. Ikuta, Circuit
`Judges, and Karen E. Schreier,* District Judge.
`
`Opinion by Judge Schreier;
`Dissent by Judge W. Fletcher
`
`* The Honorable Karen E. Schreier, United States District Judge for
`the District of South Dakota, sitting by designation.
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`ARMANDO NIEVES MARTINEZ;
`AMELIA PESQUEIRA ORTEGA, on
`their behalf and on behalf of R.N.P.;
`ARMANDO NIEVES PESQUEIRA,
`Plaintiffs-Appellants,
`
`No. 19-16953
`
`D.C. No.
`4:13-cv-00955-
`CKJ-LAB
`
`v.
`
`UNITED STATES OF AMERICA,
`Defendant-Appellee.
`
`OPINION
`
`Appeal from the United States District Court
`for the District of Arizona
`Cindy K. Jorgenson, District Judge, Presiding
`
`Argued and Submitted December 9, 2020
`San Francisco, California
`
`Filed May 11, 2021
`
`Before: William A. Fletcher and Sandra S. Ikuta, Circuit
`Judges, and Karen E. Schreier,* District Judge.
`
`Opinion by Judge Schreier;
`Dissent by Judge W. Fletcher
`
`* The Honorable Karen E. Schreier, United States District Judge for
`the District of South Dakota, sitting by designation.
`
`
`
`2
`
`NIEVES MARTINEZ V. UNITED STATES
`
`SUMMARY**
`
`Federal Tort Claims Act
`
`The panel dismissed an appeal for lack of jurisdiction
`pursuant to the discretionary function exception under the
`Federal Tort Claims Act (“FTCA”) in a case alleging tort
`claims against the United States.
`
`Plaintiffs alleged tortious actions by government officials
`during a criminal investigation related to a border crossing.
`Plaintiffs’ vehicle was subject to a dog sniff test at a border
`checkpoint, and border patrol agents used several field test
`kits to test the windshield wiper fluid for illegal substances.
`Armando Nieves Martinez and his family were detained due
`to these tests; and Armando, following his interrogation by
`border agents, spent forty days in custody. Laboratory tests
`eventually found no drugs in the vehicle, and the United
`States moved to dismiss the complaint against Nieves
`Martinez. Plaintiffs filed suit under the FTCA alleging
`causes of action for assault, negligence and gross negligence,
`false imprisonment, and intentional infliction of emotional
`distress.
`
`The FTCA constitutes a limited waiver of sovereign
`immunity in certain suits against government employees. The
`waiver, however, is limited under the discretionary function
`exception, which prohibits suit in any claim where a
`government employee’s acts or omissions were in the
`
`** This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
`NIEVES MARTINEZ V. UNITED STATES
`
`3
`
`discretionary function or duty of a federal agency or
`government employee.
`
`The panel applied a two-step analysis to determine
`whether the alleged conduct fell within the discretionary
`function exception.
`
`At step one of the test, the panel held that the border
`agents’ acts were discretionary. Specifically, the panel held
`that the agents were not subject to a mandatory federal
`protocol when they used the test kits to test the windshield
`wiper fluid, and their action was discretionary under the first
`prong of the discretionary function exception test. The panel
`further held that there was no mandatory policy or procedure
`for the dog sniff test. Concerning the agents’ interview and
`detention of plaintiffs, the panel held that the United States
`did not act unconstitutionally when interviewing, arresting,
`and subsequently detaining Nieves Martinez. Because Nieves
`Martinez’s detention was based on a valid finding of probable
`cause and no violation of the Constitution was shown, the
`district court properly found that the agents’ acts were
`discretionary under the first prong of the test.
`
`At step two of the discretionary function exception test,
`the panel considered whether the investigative actions
`involved considerations of social, economic, or political
`policy. The panel held that, here, the agents were carrying
`out a criminal investigation when they detained the Nieves
`family. Because the investigation involved policy judgments
`at the core of the executive branch, the agents’ conduct
`clearly involved the type of policy judgment protected by the
`discretionary function exception. The panel held that whether
`the agents negligently carried out the liquid drug test and dog
`sniff was immaterial to the analysis under the discretionary
`
`
`
`NIEVES MARTINEZ V. UNITED STATES
`
`4 f
`
`unction exception. The panel also held that even though one
`of the agent’s actions may have been negligent and even
`abusive, the actions were not completely lacking legitimate
`policy rationale and they were shielded by the discretionary
`function exception. Because the agents’ discretionary
`judgments
`involved social, economic, or political
`considerations, and their actions did not violate Nieves
`Martinez’s constitutional rights, the panel affirmed the
`district court’s discretionary function exception determination
`as it related to claims arising out of the alleged assault,
`negligence and gross negligence, and false imprisonment of
`Nieves Martinez and his family.
`
`The panel held that the discretionary function exception
`applied to bar the Nieves family’s intentional infliction of
`emotion distress claim because plaintiffs did not have a valid
`constitutional challenge to the interrogation. The panel held
`further that the Nieves family’s challenge to the district
`court’s judgment as to this claim following the bench trial
`also failed for another reason: their failure to include key
`trial testimony.
`
`Judge W. Fletcher dissented, and he would hold that the
`discretionary function exception was not available as a
`defense. He would hold that Agent Mendez made a
`discretionary decision, as part of his criminal investigation, to
`use a field drug test kit to test the windshield washer fluid in
`the Nieves’ vehicle. The kit specified a mandatory protocol
`for testing fluids for drugs. Mendez failed to follow the
`mandatory protocol when he performed Test A, and he failed
`entirely to perform the mandated Test U. After negligently
`performing the drug test, Agent Mendez reported erroneously
`to Agent Casillas
`that
`the drug
`test had detected
`methamphetamine, and Agent Casillas then arrested Nieves
`
`
`
`NIEVES MARTINEZ V. UNITED STATES
`
`5
`
` Nieves Martinez, an innocent man, was
`Martinez.
`imprisoned for forty days based on Mendez’s mistake.
`Because Mendez failed to follow the mandatory protocol of
`the drug test kit, the discretionary function exception was not
`available as a defense.
`
`COUNSEL
`
`David L. Abney (argued), Ahwatukee Legal Office P.C.,
`Phoenix, Arizona, for Plaintiffs-Appellants.
`
`Dennis C. Bastron (argued), Assistant United States Attorney;
`Christina M. Cabanillas, Deputy Appellate Chief; Michael
`Bailey, United States Attorney; United States Attorney’s
`Office, Tucson, Arizona; for Defendant-Appellee.
`
`
`
`6
`
`NIEVES MARTINEZ V. UNITED STATES
`
`OPINION
`
`SCHREIER, District Judge:
`
`This appeal requires us to decide if the discretionary-
`function exception, 28 U.S.C. § 2680(a), shields the United
`States from suit under the Federal Tort Claims Act (FTCA)
`for allegedly tortious actions during a criminal investigation
`related to a border crossing. We hold that, because the alleged
`actions are not unconstitutional, it does.
`
`FACTUAL AND PROCEDURAL BACKGROUND
`
`On August 18, 2011, appellant Armando Nieves
`Martinez, a resident of Caborca, Sonora, Mexico and a
`commercial grape grower, departed Caborca with his wife,
`appellant Amelia Pesquiera Ortega, and the couple’s two
`children, appellants Armando Nieves Pesquiera and Regina
`Nieves Pesquiera, to go shopping in Chandler, Arizona. The
`family encountered two checkpoints on their way to the
`border. At the first checkpoint, each member of the Nieves
`family showed the officer their visa or permit. A drug
`detection dog walked around the vehicle, and to Nieves
`Martinez’s knowledge, it did not detect anything in the
`vehicle.
`
`Before the Nieves family arrived at the second
`checkpoint, a border patrol agent told Matthew Roden, who
`was a border patrol agent stationed at the second checkpoint,
`that the Nieves family’s vehicle was supposedly carrying
`drugs. Roden and his drug detection dog were a certified drug
`detection team. When the Nieves family arrived, Roden took
`his drug detection dog to sniff their vehicle. When the dog
`sniffed the front of the vehicle, “her head snapped back, her
`
`
`
`NIEVES MARTINEZ V. UNITED STATES
`
`7
`
`muscles tightened up,” and Roden understood those signs to
`mean that she had detected an odor on the vehicle. The dog
`was trained to detect and alert to only certain odors, such as
`marijuana, cocaine, heroin, and methamphetamine. After the
`dog alerted, Roden asked the Nieves family to pull over into
`a secondary inspection area where the dog again alerted to the
`front of the vehicle. Roden climbed underneath the car and
`looked in the engine but could not find what, if anything,
`caused the dog to alert.
`
`Border patrol agents drove the Nieves family’s vehicle to
`the Ajo Border Patrol Station to more thoroughly search it.
`Roden and another agent, Francisco Mendez Garcia, searched
`the vehicle and checked the windshield wiper fluid reservoir
`of the vehicle. Mendez knew from his training that liquid
`drugs have been found concealed in windshield washer fluid.
`Mendez used a flashlight to inspect the liquid and thought it
`looked abnormal and murky. Mendez suspected that the
`murkiness might be caused by liquid drugs present in the
`windshield washer fluid.
`
`Mendez and Agent Reno used several field test kits to test
`the windshield wiper liquid for illegal substances, and at least
`one test indicated the presence of methamphetamine. Mendez
`did not perform a second test to confirm whether the
`substance was methamphetamine or amphetamine.
`
`While Roden and Mendez conducted the field tests,
`another agent, Victor Casillas, interacted with the Nieves
`family. Casillas was the supervisor of a team of border patrol
`agents called the “Disrupt Unit,” a specialty border patrol unit
`that focused on targeting illegal organizations. Before formal
`interviews began, Casillas read the Miranda warnings in
`
`
`
`NIEVES MARTINEZ V. UNITED STATES
`
`8 S
`
`panish to the three adult Nieves family members—Nieves
`Martinez, his wife, and his son.
`
`Nieves Martinez and his son were placed in separate
`holding cells. His wife and daughter were permitted to stay
`together in an open seating area. Casillas, who is fluent in
`Spanish, conducted formal questioning of each family
`member in Spanish and in the presence of another agent,
`Wander Falette, who is also fluent in Spanish.
`
`Nieves Martinez initially denied that he had any
`involvement in criminal activity. During the interrogation,
`Mendez informed Casillas the windshield wiper fluid field
`tested positive for methamphetamine, and Casillas repeatedly
`told Nieves Martinez that the agents had found drugs in the
`car. After three hours of questioning, Casillas presented
`Nieves Martinez with the container of the substance that had
`tested positive for methamphetamine.
`
`Casillas then told Nieves Martinez that if he did not
`confess whose drugs were in the car and where they came
`from, his wife would go to a prison in Kentucky, his son
`would go to a federal prison, and his daughter, a minor,
`would be in the custody of the United States. Casillas
`eventually brought Nieves Martinez’s son into the cell where
`the interrogation was taking place. His son was crying and
`Nieves Martinez felt “totally destroyed” to have to tell his son
`that United States authorities were claiming the family had
`drugs.
`
`Nieves Martinez’s son left the cell after one or two
`minutes of speaking with his father. Casillas then returned
`and began “shouting that he needed a confession” or someone
`to hold responsible for the drugs found in the Nieves family’s
`
`
`
`NIEVES MARTINEZ V. UNITED STATES
`
`9
`
`vehicle. Nieves Martinez asked to speak with his wife, and
`she was brought into the cell. The two decided that Nieves
`Martinez would take the blame for the drugs in order to save
`the rest of the family from what Casillas had threatened
`would happen to them. Nieves Martinez confessed—
`falsely—to smuggling the drugs. Nieves Martinez estimated
`that he spent about 45 minutes actively answering Casillas’s
`questions.
`
`After Nieves Martinez’s apparent confession, Homeland
`Security Investigations (HSI) Agent Brian Derryberry became
`the lead agent on the case. Derryberry transported Nieves
`Martinez in a van to Phoenix, Arizona, with Casillas and a
`third agent. During the drive, the agents pressed Nieves
`Martinez for more details on the drug smuggling operations.
`The agents told Nieves Martinez that if he did not provide
`more information, they would not release his family. Initially,
`Nieves Martinez fabricated details about a drug transfer to
`satisfy Casillas’s demands for a confession, stating that the
`family was taking the drugs, which had been hidden in the
`vehicle while it was in the repair shop, to a shopping center,
`where the drugs would be taken out of the vehicle. Later,
`Nieves Martinez recanted his confession, telling the agents
`that he had only confessed for the sake of his family, not
`because the vehicle actually contained drugs. He told the
`agents he had not committed a crime in Mexico or in the
`United States.
`
`Eventually, Nieves Martinez was taken to the United
`States Marshal’s office in Phoenix. While being checked into
`the detention center, Nieves Martinez again told the agents
`that he did not know how the drugs got into his vehicle and
`that he only confessed so the agents would release his family.
`The next morning, while being transported, Nieves Martinez
`
`
`
`10
`
`NIEVES MARTINEZ V. UNITED STATES
`
`reiterated that he only confessed so that his family would be
`released.
`
`The next day, the United States filed a criminal complaint
`against Nieves Martinez, accusing him of violating 21 U.S.C.
`§§ 846, 841(a)(1), and 841(b)(1)(A)(vii). The complaint
`included an affidavit of probable cause from Derryberry. The
`affidavit detailed Derryberry’s past experience as a criminal
`investigator, dating back to 2003. The affidavit’s statement of
`probable cause stated
`that 1.25 gallons of
`liquid
`methamphetamine had been found in Nieves Martinez’s car,
`Roden’s drug detection dog had alerted to the vehicle two
`times, and the vehicle’s windshield wiper fluid had tested
`positive for methamphetamine. The affidavit stated that
`Nieves Martinez initially maintained his innocence, but
`ultimately confessed to the scheme involving the auto repair
`shop. The affidavit did not disclose that Nieves Martinez later
`recanted his confession. At a preliminary hearing, a
`magistrate judge found probable cause to believe that Nieves
`Martinez violated 21 U.S.C. §§ 841 and 846. The magistrate
`judge ordered Nieves Martinez detained.
`
`While Nieves Martinez was in custody, the investigation
`continued. The agents sent a sample of the windshield wiper
`fluid for more complete testing to a DEA laboratory. The
`laboratory tests found no drugs in the fluid. Derryberry
`ordered that the vehicle be searched with a drug detection
`dog, fiber optic scopes, and additional tools. No drugs were
`found. The next day, the United States moved to dismiss the
`complaint against Nieves Martinez. In all, Nieves Martinez
`spent forty days in custody.
`
`The Nieves family filed suit against the United States
`under the FTCA, alleging causes of action for assault,
`
`
`
`NIEVES MARTINEZ V. UNITED STATES
`
`11
`
`negligence and gross negligence, false imprisonment, and
`intentional infliction of emotional distress. The United States
`moved for summary judgment on all claims.
`
`and
`a Report
`issued
`judge
`The magistrate
`Recommendation recommending that the district court deny
`the United States’ motion for summary judgment. The district
`court adopted the magistrate judge’s factual and procedural
`findings but rejected the Report and Recommendation’s legal
`conclusion. The district court found that the discretionary-
`function exception to the FTCA shielded the United States
`from suit arising out of the actions taken during the
`investigation except those acts that were unconstitutional. The
`district court granted summary judgment in favor of the
`United States on the assault and negligence and gross
`negligence claims after finding those claims were precluded
`by the discretionary-function exception. It also determined
`that the false imprisonment claim was not based on a
`constitutional violation, and thus was also precluded. But the
`court concluded that “[i]f the agents’ interrogation was
`motivated by discriminatory animus . . . and resulted in a
`confession that [the] agents were likely to know was false, the
`agents’
`interrogation cannot be protected under
`the
`Constitution. Accordingly, because the court found there was
`“a genuine issue of material fact as to whether [the] agents’
`attempts to obtain a confession were outrageous and
`motivated by malice,” the court allowed the claim of
`intentional infliction of emotional distress to proceed to trial.
`
`After a three-day bench trial, the district court issued an
`order dismissing the intentional infliction of emotional
`distress claim. The district court found that the Nieves family
`failed to show that Casillas was motivated by malice when he
`interrogated and elicited a false confession from Nieves
`
`
`
`12
`
`NIEVES MARTINEZ V. UNITED STATES
`
`Martinez. Rather, the court found that “Casillas’s actions
`were not motivated by malice, racial or otherwise.” The
`Nieves family appeals both orders.
`
`DISCUSSION
`
`I. Does the FTCA’s Discretionary-Function Exception
`Strip the District Court of Jurisdiction Over the
`Nieves Family’s Claims of Assault, Negligence and
`Gross Negligence, and False Imprisonment?
`
`A. Standards of Review
`
`This court reviews a district court’s grant of summary
`judgment de novo to determine if, viewing the evidence and
`drawing all inferences in the light most favorable to the non-
`moving party, “any genuine issues of material fact remain and
`whether the district court correctly applied the relevant
`substantive law.” Bravo v. City of Santa Maria, 665 F.3d
`1076, 1083 (9th Cir. 2011) (citing Delia v. City of Rialto,
`621 F.3d 1069, 1074 (9th Cir. 2010)). The court may affirm
`on any ground supported by the record. Campbell v. State of
`Wash. Dep’t of Soc. and Health Servs., 671 F.3d 837, 842 n.4
`(9th Cir. 2011) (citing Atel Fin. Corp. v. Quaker Coal Co.,
`321 F.3d 924, 926 (9th Cir. 2003)). “Whether the United
`States is immune from liability in an FTCA action is a
`question of law reviewed de novo.” Alfrey v. United States,
`276 F.3d 557, 561 (9th Cir. 2002) (quoting Fang v. United
`States, 140 F.3d 1238, 1241 (9th Cir. 1998)).
`
`B. Discretionary-Function Exception
`
`The district court granted summary judgment in favor of
`the United States on the Nieves family’s claims of assault,
`
`
`
`NIEVES MARTINEZ V. UNITED STATES
`
`13
`
`negligence and gross negligence, and false imprisonment
`based on the discretionary-function exception to the FTCA.
`The United States enjoys immunity from suit “unless it has
`expressly waived such immunity and consented to be sued.”
`Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1088
`(9th Cir. 2007) (quoting Gilbert v. DaGrossa, 756 F.2d 1455,
`1458 (9th Cir. 1985). “Such waiver cannot be implied, but
`must be unequivocally expressed.” Id. (quoting Gilbert,
`756 F.2d at 1458). When the United States has not
`unequivocally consented to suit, a court must dismiss the
`case, because such consent is “a prerequisite for jurisdiction.”
`Id. (quoting Gilbert, 756 F.2d at 1458).
`
`The FTCA constitutes a limited waiver of sovereign
`immunity in suits for:
`
`injury or loss of property, or personal injury
`or death caused by the negligent or wrongful
`act or omission of any employee of the
`Government while acting within the scope of
`his office or employment, under
`circumstances where the United States, if a
`private person, would be liable to the claimant
`in accordance with the law of the place where
`the act or omission occurred.
`
`28 U.S.C. § 1346(b)(1). That waiver, however, is limited
`under the “discretionary-function” exception, which prohibits
`suit in any claim that is:
`
`based upon an act or omission of an employee
`of the Government, exercising due care, in the
`execution of a statute or regulation, whether
`or not such statute or regulation be valid, or
`
`
`
`14
`
`NIEVES MARTINEZ V. UNITED STATES
`
`based upon the exercise or performance or the
`failure to exercise or perform a discretionary
`function or duty on the part of a federal
`agency or an employee of the Government,
`whether or not the discretion involved be
`abused.
`
`28 U.S.C. § 2680(a). “[T]he purpose of the exception is to
`prevent
`judicial second-guessing of
`legislative and
`administrative decisions grounded in social, economic, and
`political policy through the medium of an action in tort . . . .”
`United States v. Gaubert, 499 U.S. 315, 323 (1991) (cleaned
`up). Thus, the exception “protects only governmental actions
`and decisions based on considerations of public policy.” Id.
`(quoting Berkovitz v. United States, 486 U.S. 531, 537
`(1988)).
`
`The Ninth Circuit applies a two-step analysis when
`determining whether conduct falls under the discretionary-
`function exception. Sabow v. United States, 93 F.3d 1445,
`1451 (9th Cir. 1996). “First, we ask whether the challenged
`actions involve ‘an element of judgment or choice.’ ” Id.
`(quoting Gaubert, 499 U.S. at 322). If a “federal statute,
`regulation, or policy specifically prescribes a course of action
`for an employee to follow[,]” the act is not discretionary
`because “the employee has no rightful option but to adhere to
`the directive.” Berkovitz, 486 U.S. at 536. Second, if the court
`determines that “the challenged actions involve an element of
`choice or judgment,” the court then “determine[s] ‘whether
`that judgment is of the kind that the discretionary function
`exception was designed to shield.’” Sabow, 93 F.3d at 1451
`(quoting Gaubert, 499 U.S. at 322–23). “More specifically,
`if the judgment involves considerations of social, economic,
`or political policy, the exception applies.” Id. (cleaned up).
`
`
`
`NIEVES MARTINEZ V. UNITED STATES
`
`15
`
`1. Were the agents’ acts discretionary?
`
`a. The windshield wiper fluid test and the drug
`dog sniff test.
`
`The Nieves family contends that the agents had a
`mandatory duty to follow the proper testing protocols when
`testing the windshield wiper fluid and conducting the drug
`dog sniff test. But the Nieves family points to no “federal
`statute, regulation, or policy [that] specifically prescribes a
`course of action for an employee to follow” when conducting
`either the windshield wiper fluid test or the dog sniff test.
`Berkovitz, 486 U.S. at 536. First, no evidence suggests that
`the agents neglected a mandatory protocol when they field
`tested the windshield wiper fluid. The test kits contained a
`warning indicating they were not designed for liquid samples
`but that liquids could be tested “by placing the tip of . . . a 1
`cm square (roughly 1/2” square) piece of paper into the
`liquid[]” and then air drying the liquid sample. The guide also
`indicated that a second test could be performed to confirm
`whether the substance detected by the first test was
`amphetamines or methamphetamines. The test instructions do
`not state that further tests are mandatory, only that they
`should be performed in sequence if performed at all. The
`Officer’s Handbook and Law of Search protocols are silent
`on use of field tests.
`
`The fact that the test kits contained instructions for testing
`liquids despite counseling against using them to test liquids
`indicates that the kits’ instructions do not constitute a
`mandatory policy precluding the agents from testing liquids
`using the kits. Further, Mendez’s decision not to conduct a
`second test to determine if the liquid was an amphetamine or
`methamphetamine is not contrary to any mandatory federal
`
`
`
`16
`
`NIEVES MARTINEZ V. UNITED STATES
`
`law or policy. Thus, the agents were not subject to a
`mandatory federal protocol when they used the test kits to test
`the windshield wiper fluid, and their action was discretionary
`under the first prong of the discretionary-function exception
`test.
`
`Next, we examine whether there was a mandatory policy
`or procedure for the dog sniff test. The Nieves family’s expert
`witness opined at summary judgment that the agents’ search
`of the Nieves family’s vehicle was “not complete, thorough
`or within established and acceptable canine training,
`handling, utilization, and/or practices or procedures and
`techniques . . . .” But their expert conceded that the dog had
`behavioral changes corresponding with an alert, that all dogs
`alert differently and that an alert is a subjective determination
`of a dog’s handler. The district court concluded that the
`Nieves family’s expert did not offer his opinion based on
`personal knowledge and did not state that the dog did not
`alert at all, but rather the expert stated that the agent should
`have allowed the dog more follow through after the dog’s
`detection signal, and “should have taken additional steps to
`make sure the dog alerted to an illegal substance.” The
`district court also found that the expert’s opinion lacked
`adequate foundation and was speculative, and thus, did not
`consider the expert’s opinion.1 The expert testified that based
`on his “gut” interpretation of events, there was “a lot of
`pressure” on the agents to find contraband in the vehicle and
`
`1 At summary judgment, courts may decline to consider “unsupported
`speculation and subjective beliefs” in expert testimony and testimony that
`is not founded in fact. See Guidroz-Brault v. Missouri Pac. R.R. Co.,
`254 F.3d 825, 829–32 (9th Cir. 2001). Thus, the district court properly
`excluded the expert’s conclusions that were based on speculation and
`“gut” interpretation.
`
`
`
`NIEVES MARTINEZ V. UNITED STATES
`
`17
`
`that that pressure may have influenced Agent Roden’s
`interpretation of the dog’s actions. But the expert’s
`skepticism is not equivalent to a mandatory policy or
`procedure that was ignored by the agents.
`
`b. The interview and detention.
`
`Even if the agents’ actions involved elements of
`discretion, agents do not have discretion to violate the
`Constitution. See Galvin v. Hay, 374 F.3d 739, 758 (9th Cir.
`2004). The Nieves family’s false imprisonment and assault
`claims are premised on the assertion that the agents acted
`unconstitutionally during Nieves Martinez’s interview, arrest,
`and 40-day detention. Thus, the Nieves family asserts that the
`agents’ actions are not discretionary acts protected by the
`discretionary-function exception to the FTCA.
`
`The court first addresses the Nieves family’s argument
`that Casillas’s interrogation of Nieves Martinez violated the
`Constitution. In support of this argument, the Nieves family
`cites Fare v. Michael C., 442 U.S. 707 (1979), Henry v.
`Kernan, 197 F.3d 1021 (9th Cir. 1999), and Moran v.
`Burbine, 475 U.S. 412 (1986). None of these cases provide
`strong support for the Nieves family’s claim that the agents
`exceeded their constitutional authority.
`
`The Nieves family cites Fare for the proposition that a
`suspect may not be “worn down by improper interrogation
`tactics or lengthy questioning or by trickery or deceit.” See
`Fare, 442 U.S. at 726–27. But in Fare, the Court found that
`the juvenile defendant was not worn down by improper
`tactics, trickery, or deceit. Id. Rather, it found that the
`juvenile had waived his Fifth Amendment rights after being
`advised of his Miranda rights even though he had been
`
`
`
`18
`
`NIEVES MARTINEZ V. UNITED STATES
`
`denied the right to speak with his probation officer. Id. “[N]o
`special factors indicate[d] that the [defendant] was unable to
`understand the nature of his actions.” Id. at 726. Thus, Fare
`does not support a conclusion that the United States violated
`Nieves Martinez’s rights during the interrogation.
`
`The Nieves family cites Henry for the proposition that a
`coercive interrogation can undermine a suspect’s ability to
`exercise free will and can result in an involuntary confession.
`See Henry, 197 F.3d at 1026–27. In Henry, officers failed to
`terminate questioning after a suspect asked for an attorney, in
`deliberate violation of Miranda and implied that his
`statements would not be used against him. 197 F.3d
`at 1027–28. Here, the district court concluded that Casillas
`gave Miranda warnings to the adult members of the Nieves
`family, who then waived their rights and consented to
`questioning. And the evidence supports this conclusion. Thus,
`the district court did not clearly err in concluding that the
`Nieves family members received and waived their Miranda
`warnings and as a result, under Henry, the United States did
`not act unconstitutionally when
`interviewing Nieves
`Martinez.
`
`Finally, the Nieves family cites Moran for the proposition
`that under certain circumstances, “police deception might rise
`to a level of a due process violation.” See Moran, 475 U.S.
`at 432. But Moran states that to reach that level, the police
`deception must “shock[] the sensibilities of civilized society.”
`Id. at 433–34. In Moran, the Court found that the officers’
`failure to inform a subject who had waived his Miranda rights
`that an attorney was trying to contact him did not deprive the
`defendant of his due process rights. Id. at 417–18, 432. Thus,
`Moran does not support the Nieves family’s claims that the
`questioning was so coercive here as to violate Nieves
`
`
`
`NIEVES MARTINEZ V. UNITED STATES
`
`19
`
`Martinez’s constitutional rights. Because Casillas’s interview
`of Nieves Martinez did not violate Nieves Martinez’s
`constitutional rights, Casillas’s conduct during the interview
`is subject to the discretionary-function analysis.
`
`Next, the court addresses the Nieves family’s claim that
`Nieves Martinez’s arrest and subsequent detention violated
`the Constitution.
`
`If there were such a constitutional violation, then the
`discretionary-function exception would not prohibit suit
`“under circumstances where the United States, if a private
`person, would be liable to the claimant in accordance with the
`law of the place where the act or omission occurred.”
`28 U.S.C. § 1346(b)(1); Galvin, 374 F.3d at 758. Therefore,
`if the discretionary-function exception is not applicable,
`under the FTCA, “suits against the United States are
`governed by the substantive law of the place where the act or
`omission complained of occurs,” McMurray v. United States,
`918 F.2d 834, 836 (9th Cir. 1990) (citing 28 U.S.C. § 1346
`(1988)). Under Arizona law, a false imprisonment claim
`requires that a person be held “without his consent and
`without lawful authority.” Slade v. City of Phoenix, 541 P.2d
`550, 552 (Ariz. 1975). If a detention occurs under legal
`authority the detention is lawful. Id.
`
`But there is no constitutional violation in this case. An
`officer can lawfully arrest a suspect when he or she has
`probable cause. “Probable cause to arrest exists when officers
`have knowledge or reasonably trustworthy information
`sufficient to lead a person of reasonable caution to believe
`that an offense has been or is being committed by the person
`being arrested.” Rodis v. City, Cty. of San Francisco,
`558 F.3d 964, 969 (9th Cir. 2009) (citation omitted).
`
`
`
`20
`
`NIEVES MARTINEZ V. UNITED STATES
`
`“Whether probable cause exists depends upon the reasonable
`conclusion to be drawn from the facts known to the arresting
`officer at the time of the arrest.” Devenpeck v. Alford,
`543 U.S. 146, 152 (2004). Under some circumstances,
`government agents may make warrantless arrests when they
`have probable cause
`to do so.” United States v.
`Bueno-Vargas, 383 F.3d 1104, 1107 (9th Cir. 2004). But “the
`Fourth Amendment requires a judicial determination of
`probable cause as a prerequisite to extended restraint of
`liberty following arrest.” Id.
`
`When the agents arrested Nieves Martinez, Roden’s drug
`detection dog had alerted twice to the Nieves family’s
`vehicle, indicating the presence of an illegal substance that
`the dog was trained to detect. At least one field test kit used
`on the vehicle’s windshield wiper liquid tested positive for
`methamphetamine. And Mendez knew from his training that
`drugs are sometimes smuggled across the border in
`windshield wiper fluid. These facts are reasonably
`trustworthy information that are sufficient to lead a
`reasonable person to conclude that Nieves Martinez, who
`drove the vehicle, was in the process of bringing drugs across
`the border. The agents therefore had probable cause to arrest
`Nieves Martinez.
`
`Moreover, the prior judicial determination that there was
`probable cause to arrest Nieves Martinez precludes us from
`revisiting this issue. After an initial arrest, “the Fourth
`Amendment demands a prompt judicial determination of
`probable cause” in order to continue detention before trial.
`United States v. Fernandez-Guzman, 577 F.2d 1093, 1097
`(7th Cir. 1978) (footnote omitted) (citing Gerstein v. Pugh,
`420 U.S. 103 (1975)). A finding of probable cause at a
`preliminary hearing is only reviewable in a subsequent civil
`
`
`
`NIEVES MAR
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