United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. Bowman United States Magistrate Judge
before the court is a motion for summary judgment filed by
the defendant on May 17, 2017. (Doc. 127) The plaintiff filed
a response on July 28, 2017. (Doc. 139); (Doc. 140). The
defendant filed a reply on August 22, 2017. (Doc. 143); (Doc.
plaintiff, Armando Nieves Martinez, claims he was illegally
seized at a vehicle checkpoint and then browbeaten into
falsely confessing to drug smuggling by agents of the
Department of Customs and Border Protection. (Doc. 20) He and
members of his family bring this action pursuant to the
Federal Tort Claims Act (FTCA). Id. The defendant
moves that this court dismiss the action pursuant to Rule 56,
Fed.R.Civ.P. (Doc. 127) The defendant argues primarily that
the agents' actions fall within the discretionary
function exception to the FTCA, which provides a limited
waiver of the government's sovereign immunity to suit.
case has been referred to Magistrate Judge Bowman for report
and recommendation pursuant to the Local Rules of Practice.
LRCiv 72.1. A hearing on the motion was held on October 4,
2017. (Doc. 149)
court recommends that the District Court, after its
independent review of the record, deny the motion. The
plaintiffs' claims are based on actions taken by the
agents that do not fall within the discretionary function
are material facts in genuine dispute; the movant is not
entitled to judgment as a matter of law. See Fed.R.Civ.P.
of Review: Summary Judgment
judgment is available only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). There is a genuine dispute “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
initial burden rests on the moving party to point out the
absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,
2553 (1986). “Where the moving party will have the
burden of proof on an issue at trial, the movant must
affirmatively demonstrate that no reasonable trier of fact
could find other than for the moving party.”
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,
984 (9th Cir. 2007). “Where the non-moving
party bears the burden of proof at trial, the moving party
need only prove that there is an absence of evidence to
support the non-moving party's case.” In re
Oracle Corp. Securities Litigation, 627 F.3d 376, 387
(9th Cir. 2010).
initially satisfied, the burden shifts to the nonmovant to
demonstrate through the production of probative evidence that
an issue of fact remains to be tried. Celotex Corp.,
477 U.S. at 324, 106 S.Ct. at 2553. “If a reasonable
jury viewing the summary judgment record could find by a
preponderance of the evidence that [the plaintiffs are]
entitled to a verdict in [their] favor, then summary judgment
[is] inappropriate; conversely, if a reasonable jury could
not find liability, then summary judgment [is] correct.
Cornwell v. Electra Cent. Credit Union, 439 F.3d
1018, 1027-28 (9th Cir. 2006).
judging evidence at the summary judgment stage, the court
does not make credibility determinations or weigh conflicting
evidence.” Soremekun v. Thrifty Payless, Inc.,
509 F.3d 978, 984 (9th Cir. 2007). “Rather,
it draws all inferences in the light most favorable to the
nonmoving party.” Id.
AND PROCEDURAL BACKGROUND
August 18, 2011, the plaintiff, Armando Nieves Martinez, his
wife, and two children drove north from their home in
Caborca, Sonora into Arizona intending to do some shopping.
(Doc. 139-1, p. 1) Nieves is a grape farmer. Id. His
annual gross income is around three million dollars.
to the trip, Nieves's vehicle had been in the repair shop
for about ten days. (Doc. 139-1, p. 2) Nieves's wife had
been in an accident, and part of the front end had been
family encountered two checkpoints on their trip northwards.
(Doc. 139-1, p. 2) They passed the first without incident, as
far as they knew, and proceeded north toward the second.
fact, the Disrupt Unit of the U.S. Border Patrol had been
tipped to expect a vehicle coming north smuggling drugs.
(Doc. 139-1, p. 7) As it turned out, Nieves's car fit the
description of the suspect vehicle. Id., p. 8
Personnel at the first checkpoint notified Agent Casillas, of
the Disrupt Unit, that a vehicle fitting the suspect
description passed the first checkpoint. Id., p. 9
The vehicle was permitted to proceed on to the second
checkpoint because the first checkpoint had no K9.
Id., p. 9
Casillas notified agents at the second checkpoint that they
were expecting a vehicle smuggling hard narcotics in a hidden
compartment. (Doc. 139-1, p. 8) Casillas insists that a
description of the vehicle was not disclosed outside the
Disrupt Unit to ensure the impartiality of the agents at the
checkpoint, but someone gave a description of the vehicle to
Agent Roden, the K9 Agent. Id., pp. 8, 9 Agent Roden
saw the vehicle he was waiting for and “ran the
dog.” (Doc. 139-1, p. 9) According to Roden, the dog
“alerted” to the front grill area of the vehicle.
Id. Because of the alert, Roden instructed Agent
Roman to send the vehicle to the secondary inspection area.
Id. If the dog had not alerted, he would have let
the vehicle go. Id.
Nieveses were removed from the vehicle, and Roden again
conducted an exterior sniff of the vehicle. (Doc. 139-1, p.
10) He obtained the same results. Id.
Nieveses' expert witness, Edward Dobbertin, Jr., opined
that the “detection canine team's search of the
plaintiff's vehicle was not complete, thorough or within
established and acceptable canine training, handling,
utilization and/or practices or procedures and techniques . .
. .” (Doc. 139-1, p. 11) Dobbertin opined that the dog
in this case “sniffed and had indicators, ” but
did not give a full alert. Id. A “sniff”
occurs when a dog's posture changes, its breathing
changes, and it gives “a head shot.”
Id., p. 12 The term “alert” is used when
a dog gets as close as possible to the source of the odor and
then sits or lies down. Id. To conduct a proper
search, the dog should have been given a chance to determine
where the odor was coming from by letting the dog
“search the wheel wells, underneath the vehicle, on top
of the doors, the hood, the grill, and then back away from
the vehicle” to get into a position to catch odors that
are settling down. Id. If the source of the odor is
not found, the odor could come from contact transfer or even
from another vehicle. Id.
Nieveses were brought to the Ajo Border Patrol station. (Doc.
139-1, p. 14) The vehicle was taken to the garage.
Id. Agent Roden asked Agent Garcia Mendez to assist
with the search. Id., p. 16 Mendez was a member of
the Disrupt Unit. Id., p. 17 Mendez checked the
windshield wiper container because he had been taught in the
recent Desert Snow training session that drugs could be
hidden there. Id., p. 17 The fluid looked cloudy,
which Mendez believed was an indication of narcotics.
Id. He tested the fluid with Agent Watson.
had a tool kit, which was only provided to K9 handlers. (Doc.
139-1, p. 18) Mendez took a wooden rod, or stick, from
Watson's kit, wrapped a piece of paper towel around the
end of the stick, and dipped it in the liquid. Id.
He removed the paper and allowed it to dry on a metal bench
that he cleaned with an unknown spray solvent. Id.,
pp. 18, 21 He said he did two tests and “from my
recollection, I recall both being positive.”
Id., pp. 18-19
acknowledged that the drug kit instructions state that,
“the choice of towel is critical. Unscented, uncolored
filtered paper is ideal. Never use brown paper, hand towels
or newspapers.” (Doc. 139-1, p. 21)
Devin Reno stated that the first test was negative, but the
test was performed again sampling liquid at the bottom of the
tank. (Doc. 139-1, p. 19) The second test was positive.
Id. Reno advised ...