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Martinez v. United States

United States District Court, D. Arizona

October 11, 2017

Armando Nieves Martinez, et al., Plaintiffs,
v.
United States of America, Defendant.

          REPORT AND RECOMMENDATION

          Leslie A. Bowman United States Magistrate Judge

         Pending 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. 144)

         The 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. Id.

         The 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)

         The 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 exception.

         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).

         Standard of Review: Summary Judgment

         Summary 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, 2510 (1986).

         The 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).

         Once 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).

         “In 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.

         FACTUAL AND PROCEDURAL BACKGROUND[1]

         On 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. Id.

         Prior 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 damaged. Id.

         The 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. Id.

         In 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

         Agent 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.

         The 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.

         The 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.

         The 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. Id.

         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

         Mendez 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)

         Agent 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 ...


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