Martinez v. United States

Decision Date11 May 2021
Docket NumberNo. 19-16953,19-16953
Citation997 F.3d 867
Parties Armando NIEVES MARTINEZ; Amelia Pesqueira Ortega, on their behalf and on behalf of R.N.P.; Armando Nieves Pesqueira, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

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 Pesqueira Ortega, and the couple's two children, appellants Armando Nieves Pesqueira and Regina Nieves Pesqueira, 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 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 Spanish 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 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 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, negligence and gross negligence, false imprisonment, and intentional infliction of emotional distress. The United States moved for summary judgment on all claims.

The magistrate judge issued a Report and 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...

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    ...when a federal employee's tactics during an investigation had ‘no legitimate policy rationale.’ " Nieves Martinez v. United States , 997 F.3d 867, 881 (9th Cir. 2021) (quoting Sabow v. United States , 93 F.3d 1445, 1454 (9th Cir. 1996) ).A. Myles's malicious prosecution claim was brought ag......
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