FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

A R M A ND O N I EVE S M AR

T I NE Z ; A ME L I A P E S Q UE I R

A O R T E G A , on their behalf and on behalf of R.N.P.; A R M A ND O N I EVE S P E S Q UE I R A , Plaintiffs-Appellants
,

v.

U N I T E D S TA T E S O F A ME R I C A , Defendant-Appellee. No. 19-16953

D.C. No. 4:13-cv-00955- CKJ-LAB

OPINION

Appeal from

the United States District Court f or the District of Arizona C indy K. Jorgenson, District Judge, Presiding

Argued and Subm itted December 9, 2020 San Francisco, California

Filed May 11, 2021

Before: W illiamA. 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.N I EVE S M AR T I NE Z V

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SUMMARY * *

Federal Tort Claims Act

The panel dism issed an appeal for l a c k o f jurisdiction
p ur suant to the discretionary function exception under the Federal Tort Claim s A ct (“ FTCA”) in a case alleging tort claim s against the United States

.

Plaintiffs alleged tortious actions by g overnm ent officials during a crim inal investigation relat e d t o a border crossing. Plaintiffs’ vehicle was subject to a d og sniff test at a border checkpoint, and border patrol agents u s ed several field test k it s to test the windshield wiper fluid for illegal substance s

. Arm ando Nieves Martinez and h is fam ily were detained d ue to these tests; and Arm ando, following his interrog at i o n by border agents, spent forty d ays in custody. Laboratory tests eventually found no drugs in the veh i c l e , and the United States mo v ed to dism iss the com plaint against Nieves Martinez. Plaintiffs filed suit under the FTCA a lleging

causes of action for assault, negligence and gross negligence, false im p risonm ent, and intentional infliction of em otional distress.

The FTCA constitutes a lim ited waiver of soverei g n imm unity in certain suits against governm ent em ployees. The waiver, however, is lim ited under the discretionary function exception, which prohibits suit in any claim whe r e a governm ent em

ployee’s acts o r om issions were in the

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.N I EVE S M AR T I NE Z V

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discretionary function or duty of a federal agen c y o r governm ent em

ployee.

The panel applied a two-step analysis to determ ine whether the alleged conduct fell within the dis cr etionary function exception.

At step one o f the test, the p an el h eld that the border agents’ acts were discretionary. Specifically, the panel held that the agents were not subject to a m andatory federal protocol when they used the test kits to test the win d s h ield 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 m andatory policy or procedure for the d og sniff test. C oncerning the agents’ interview and d etention of p laintiffs, the panel held that the United St at e s did n o t act unconstitutionally when interviewing, arr e s ting,

an d su b seq u ently d etaining Niev es Martin ez. B ecau s e N iev e s Martinez’s d etention w as based on a valid finding of probable

cause and no violati on of the Constitution was shown, the district court properly found tha t the agents’ acts were discretionary under the first prong of the test.

At step two of the discretio n a ry function exception test, the panel consi d ered whether the investigative actions involved considerations of socia l
, e conom ic, or political policy. T he p a n e l he ld that, h ere, the agents were carrying

o ut a crim inal investigation when they detained the Nieves fam ily. Because the investigation involved policy judgm ents at the core of the executive br a n c h
, the agents’ conduct clearly involved the type o f policy judgm ent protected by the discretionary f

un ctio n ex cep t io n

. T he panel held that whether the agents n egligently carried o ut the liquid drug test and dog sni ff wa s imm aterial to the analysis under the discretionaryN I EVE S M AR T I NE Z V

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function exception. The panel also held that even though o ne of the agent’s actions m ay have been negligent and even ab u sive, the actions were not com pletely lacking legitim ate pol i c y r ationale and they were shielded by the discretionary funct i o n exception. B ecause the agents’ discretionary j u d g me n t s i n v o l v e d s o c i a l
, e c o n o mi c , o r p o l i t i c a l consi d e rations, and their actions did not violate Nieves Martinez’s constitutional rights, the panel affirm ed the d i strict co u

rt’s d iscretion ary f

un ctio n ex cep tio n d e t e r

m i n at i o n

as it related to cl a ims a r i sing out of the alleged assault, negligence and gross negligence, an d false im prisonm ent o f Nieves Martinez and his fam ily.

The p anel held that the discretionary function exception applied to ba r the Nieves fam ily’s intentional infliction o f

em otion distress claim because plaintiffs did not have a valid constitutional challenge to the interrogation. The panel held further that the Nieves f am ily’s challenge to the district court’s judgm ent as to th i s claim following the b ench trial also failed f

or another reason: their failure to include k ey trial testim ony.
Judge W

. Flet c h e r dissented, and h e would hold that the discretionary function e x c eption was not available as a defense. H e would hold that A gen t M e ndez m ade a discretionary decision, as part o f his crim inal investigation, to

use a field drug test kit to test the windshield washer fluid in the Nieves’ v ehicle. The kit s p e cified a m andatory protocol fo r testing fluids for d

rugs. Mendez failed to follow th e

m andatory p rotocol when he perform ed Test A, and he failed entirely to p e r fo rm the m andated Test U. After negligently perform ing the drug test, Agent Mendez reported erroneously
to Agent Casillas that the drug test had de t ected metham phetam ine, and Agent Casillas then arrested Nieve sN I EVE S M AR T I NE Z V

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Martinez. Nieves Martinez, an innocent m an, was im prisoned for forty d ays based on Mendez’s m istake. Because Mendez failed to follow the m andato ry protocol o f the drug test kit, the discretionary function exception was not available as a defense.

C OUNSEL

David L. Abne y ( argued), Ahwatukee Legal Office P.C., Phoenix, Arizona, for Plaintiffs-Appellants.

D enn is C. Bastron (argu e d ), A s sistan t Un ited S tates A tto rn ey ; Christ i na M. Cabanillas, D eputy Appellate Chief; Michael Bailey, Unit e d S tates Attorney; United States Attorney’s Office, Tucson, Arizona; for Defendant-Appellee.N I EVE S M AR T I NE Z V

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OPINION

SCHREIER, District Judge:

Th i s appeal requires us to decide if the discretionar y

function exception, 28 U.S.C. § 2680(a), sh i e l d s the United States from suit under the Federal Tort Claim s Act ( FTCA) for allegedly tortious actions d uring a crim inal investigation related to a b order crossing. W e hold that, because the alleged actions are not unconstitutional, it does.

FACTUAL AND PROCEDURAL BACKGROUND

On August 1 8
, 2011, appellant Arm ando Nieves Martinez, a resident of C aborca, So n o r a, Mexico and a commercial grape g rower, departed Caborca with his wife, appellan t Am elia P esquiera Ortega, and the couple’s two children, appel l a n t s Arm ando Nieves Pesquiera and Regina Nieves P esquiera, to go shopping in Chandler, Arizona. The fa mi ly encountered two checkpoints on their way to th e border. At the fi rst checkpoint, each m em ber of the Nieves fam ily showed the officer th e i r visa or perm it. A drug detection dog walked around the vehicle, a n d to Nieves Martinez’s knowledge, i t d i d not detect anything in the vehicle.

Before the Nieves fam ily arrived at the second checkpoint, a border patrol agent to ld Matthew Roden, who

was a border patrol agent stationed at the second checkpoint, that the Nieves fam ily’s v ehicl e wa s supposedly carrying drugs. Roden and his drug detection dog were a certified drug detection team

. When the Nieves fam ily arrived, Roden took h is drug detection dog to sniff their vehicle. When the do g sniffed the front of the v ehicle, “her head snapped back, herN I EVE S M AR T I NE Z V

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m uscles tightened up,” and Roden understood those signs to

me a n that she had detected an odor on the vehicle. Th e d o g

was trained to detect and alert to only c e rtain odors, such as

m arijuana, cocaine, heroin, and m etham phetam ine. After the dog alerted, R oden asked the Nieves f am ily to pull over into

a secondary inspection area where the dog again alerted to the front of the vehicle. Roden clim bed underne a th the car and looked in the engine b ut could n ot f ind wh a t , i f anything, caused the dog to alert.

Border p atrol agents drove the N ieves fam ily’s vehicle to the Ajo Border P atrol Station to m o re thoroughly search it. Roden and another agent, Francisco Men d ez G arcia, searched the vehicle and checked the windshield wiper fluid reservoir of the veh i cle. 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 l o o ked abnorm al and m urky. Mendez suspected that th e

m urkiness m ight be caused b y liquid drugs present in the windshield washer fluid.

Mendez and A gent Reno used several field test kits to test the windshield wiper liquid for illegal substances, and at least

one test indicated the presence o f m etham phetam ine. Mendez d id n ot perform a second test to confirm whether th e substance was m etham

phetam ine or am

phetam ine.

While Roden and Mendez conducted the field tests,

a n other agent, Victor Casillas, interacted with the Nieve s fam ily. Casillas was the supervisor of a team of border patrol agents called the “Disrupt Unit,” a specialty b o rder patrol unit that focused on targeting illegal organizations. Before form al int e rv i ews began, Casillas read the Miranda warnings inN I EVE S M AR T I NE Z V

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Spanish to the three adult Nieves fam ily m em bers—Nieves Martinez, his wife, and his son.

Nieves Marti n e z a nd his son were placed in separate holding cells. His wife and daughter were perm itt e d t o stay together in an open seating area. Casillas, who is f luent in Spanish, conducte d form al questioning of each f am ily

m em ber in Spanish and in the p r esence of another agent, W ander Falette, who is also fluent in Spanish.

Nieves Martinez initially den i e d that he h ad any involve m ent in crim inal activity. During the interrogation, Mendez inform ed Casillas the windshield wiper fluid field tested positive for m etham p hetam ine, and Casillas repeatedly told Nieves Martinez that the agents had found drug s i n the

car. After th r e e hours o f q uestioning, Casillas presented Nieves Martinez w ith the container of the substance that h ad tested positive for m etham phetam ine.

Casillas then told Ni eves Martinez that if he did not confess whose d

rugs w ere in the car and where th e y c am e from
, his w ife would go to a prison in Ke n tu c ky, his son would go to a federal prison, and his daughte r , a mi n or,

wo u l d be in the custody o f the United States. Casillas eventually brought Nieves Martinez’s son into the cell where the i nt e rr o g ation was taking place. His son was crying and Nieves Martinez felt “totally d estroyed” to have to tell his son that United States authoritie s were claim ing the fam ily h ad drugs.

Nieves Martinez’s son left th e cell after one or two

m inut e s o f speaking with his father. Casillas then returned and began “shouting that he needed a confession” or som eone to hold responsible for the drugs f ound in the Nieves fam ily’sN I EVE S M AR T I NE Z V

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v eh i c le. Nieves Martinez asked to speak with his wife, a n d she was brought into the cell. The two decided that Nieves Martinez would take the blam e for the drugs in order to save the rest of the fam ily from what Casillas h a d th reatened would happen to them

. Nieves Martinez con fessed— falsely—to sm

uggling the drugs. Nieves Martinez estim ated that he spent about 45 m inutes actively answering Casillas’s questions.

After Nieves Martinez’s apparent confession, Hom eland S ecu rity I nv e s t i g at i o n s (H S I ) A g ent B rian D erry b erry b ecam e the l e a d a gent on the case. Derryberry transported Nieves Martinez in a van to Phoenix, Ar i z o n a, with Casillas and a third agent. During the drive, the agents press ed Nieves Martinez for m ore d etails on the drug sm uggling operations. The agents told Nieves Ma rt i n e z that if he did not provide

m ore inform ation, they would not release his f am ily. Initially, Nieves Martinez fabricated det a i l s about a d rug transfer to satisfy C asillas’s dem ands for a confession, s t a t i n g that the fam ily was taking th e drugs, which had been hidden in the vehicle while it was in the repair shop, to a shopping center, where the drugs would be t a k e n o ut of the vehicle. Later, Ni eves Martinez recanted his confession, telling the agents that he h ad only confessed for the sake of his fam ily, not because the v ehicle actually c o n tained drugs. He told the agents he had not comm itted a crim e in Mexi c o or in the United States.

Eventually, N ieves Martinez was taken to the Unite d States Marshal’s office in Phoenix. While being checked into the detenti o n c e nter, N ieves Martinez again told the agents that h e did not know how the drugs got into his vehicle and that he only confessed so the agents would release h is fam ily. The next m o rning, while being transported, Nieves MartinezN I EVE S M AR T I NE Z V

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reiterated that he only confessed so that his fam ily w ould be released.

The next day, the United States filed a crim inal com plaint against Nieves Martinez, accusing him of violating 21 U.S.C. §§ 846, 8 41(a)(1), and 841(b)(1)(A)(vii). The com plaint included an affidavit of probable cause from D erryberry. The affidavit detailed Derryberry’s past experience as a crim inal investigator, dating back to 2003. The affidavit’s statem ent o f
p robable cause stated that 1 .25 gallons of l i qu i d

m etham phetam ine had been found in Nieves Martinez’s car, Rode n ’ s d

rug detection dog had alerted to the vehicle two tim es, and the vehicle’s windsh i e l d wiper fluid had tested positive for m etham

phetam ine. The affidavit stated that Nieves Martinez initially m aintained his innocence, but ultim ately confessed to the schem e involving the auto repair shop. The affidavit did not d isclose that Nieves Martinez later

r e canted h is confession. A t a prelim inary hearing, a

m agistrate judge found probable cause to believe that Nieves Martinez violated 21 U.S.C. §§ 841 and 846. T he m agistrate judge ordered Nieves Martinez detained.

While N ieves Martinez was in custody, the investigation continued. The agents sent a sam ple of the windshield wiper fl u i d for m ore com

p lete testing to a DEA laboratory. The laborat o ry tests found no drugs in the fluid. D erryberry ord e r e d 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 m oved to dism iss the

c o m plaint against Nieves Martinez. In all, N ieves Marti n e z spent forty days in custody.

The Nieves fam ily fi led suit against the United States under the FTCA, alleging causes o f a c tion for assault,N I EVE S M AR T I NE Z V

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negligence and gross negl igence, false im prisonm ent, and intentional infliction of em otional d istress. The United States

m oved for summ ary judgm ent on all claim s.

The m agistrate judge issued a Rep o rt and Recomm endation recomm ending that the district court deny the United States’ m otion f or summ ary judgm ent. The district
court adopted the m agistrate ju d ge’s factual and procedural findings but rejected the Report and Recomm endation’s legal

con c l u s i on. The district court found that the d iscretionaryfun ction exception to the FTCA shielded the United States from suit arising out of the actio n s t a ken during the inv estig atio n e x cept those acts th at w ere un co n stitu tio n al. T h e district court granted summ ary ju dg me n t in favor of the United S tates on the assault and n e g l i gence and gross negligence claim s after finding those claim s were precluded by the d iscretionary-function except i on. It also determ ined
that the false im

prisonm ent claim w as not based on a constitutional violation, and thus w as also precluded. B ut the
court concluded that “[i]f the agents’ interrogation was

m otivated by di s c r i minatory 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 m at erial fact as to whether [the] agents’ attem p ts to obtain a co n fe ssion were outrageous and

m otivated by m alice,” the court allowed th e c laim o f intentional infliction of em otional distress to proceed to trial.

After a three-day b e n c h trial, the district court issued an order dism issing the intentional infl i c tion of em otional distress claim

. The district court found that the N ieves f am ily failed to show that Casillas was m otivated by m alice when he i n t e rrogated and elicited a f alse confession from Nieve sN I EVE S M AR T I NE Z V

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Martinez. Rather, the court found that “Casillas’s actions

were not m otivated by ma lice, racial or otherwise.” The Nieves fam ily appeals both orders.

DISCUSSION

I. Does the FTCA’s Discretionary-Function Exception Strip the District Court of Jur isdiction Over the Nieves Family’s Cl aims of A ssault, Negligence and Gross Negligence, and False Imprisonment?

A. Standards of Review

This court reviews a di strict court’s grant of summ ary judgm ent de novo to determ ine if, viewing the evidence and drawing all inferences in the light m o st favorable to the nonm oving party, “any genuine issues of m aterial fact rem ain and whether the d ist ri c t court correctly applied the relevant substantive law.” Bravo v. City of Santa Maria
, 665 F.3d 1076, 1 083 (9th Ci r

. 2 0 11) (citing Delia v. City o f R ialto
, 621 F.3d 1069, 1 074 (9th Cir. 2010)). The court m ay affirm

on any ground supported by the record. Campbell v. State of Wash. D ep’t ofSoc. and Health Servs.
, 671 F.3d 837, 8 42 n.4 ( 9th Cir. 2011) (citing Atel Fin. Corp. v. Quaker Coa l Co

. , 321 F .3d 924, 926 (9th Cir. 2003) )

. “ Wh ether the United States is imm

une from liabili ty in an FTCA action is a question o f law reviewed d e novo.” Al f r e y v. United States
, 276 F.3d 557, 561 (9th Cir. 2002) (qu o t i n g Fang v. United States , 140 F.3d 1238, 1241 (9th Cir. 1998)).

B. Discretionary-Function Exception

The district court granted summ ary judgm ent in favor o f the United States on the Nieves f am ily’s claim s of a s s ault,N I EVE S M AR T I NE Z V

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negligence an d gross negligence, and false im prisonm ent based on the discretionary-function exception to the FTCA. The United States enjoys imm unity from suit “unless i t ha s expressly waived such imm unity and consented to be sued.” Dunn & Black, P.S. v. United States
, 492 F.3d 108 4
, 1 0 8 8 (9th C ir. 2007) (quoting Gilbert v. DaGrossa
, 756 F.2d 1455, 1458 (9th Cir. 1985). “Such w aiver cannot be im plie d
, but

m ust be unequivocally expres s ed .” Id. (quoting Gilbert
, 756 F .2d a t 1458). When the United States has not

un equivocally consented to suit, a court m ust dism iss the
case, because such consent is “a p rerequisite for jurisdiction.” Id. (quoting Gilbert , 756 F.2d at 1458).

The FTCA constitutes a li m ited w aiver of sovereign imm unity in suits for:

injury or loss of property, o r personal i n jury

or death caused by the negligent or wr o n gful
act or om ission of any em p loy ee of the Governm ent while acting w ithin the scope o f h i s o ff i c e o r e m p l o y m e n t , u n d e r circum stances where the United States
, if a private person, would be liable to the claim ant in accordance w ith the law of the place where the act or om ission occurred.

28 U.S.C. § 1 3 4 6(b)(1). T hat waiver, however, is lim ited

un d er th e “ d i scretio n ary -f unction” exceptio n , wh ich p ro h ib its suit in any claimthat is:

based upon an act o r om ission of an em ployee of the Governm ent, exercising due care, in the execution of a statute o r regulation, wheth er

or not such statute or regulation be valid, o rN I EVE S M AR T I NE Z V

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based upon the exercise or p erform ance or the failure to exercise or perform a discretionary function or duty on the part o f a federal age n cy or an em

ployee of the Governm ent, whether or n ot the d iscretion involved be abused.

28 U.S.C. § 2680(a). “[T]he purpose of th e exception is to prevent judicial second-guessing of legi s l ative and adm inistrative decisions grounded in s ocial, econom ic, and political policy through the m edium of an action in tort

. . . . ” United States v. Gaubert
, 499 U.S. 315, 323 (1991) (cleaned up). Thus, the exception “protects o nly governm ental actions and decisions based on co nsiderations of public policy.” Id. (quoting Berkovitz v. United States
, 4 8 6 U.S. 531, 537 (1988)).

The Ninth Circuit applies a two-step analys is when determ ining whether c o nduct falls un der the d iscretionaryfunction exception. S

a bow v. U

nited States
, 93 F.3d 1445, 1451 (9th Ci r

. 1996). “First, we ask whether the challenged actions involve ‘an eleme n t o f judgm ent or choice.’ ” Id. (quoting Ga u be r t , 499 U.S. at 322). If a “federal statute, regulation, o r policy specifically prescribes a course of action for an e mp l o y ee to follow[,]” the act is not discretionary because “the em

ployee has no rightful option b ut to adhere to the directive.” Berkovitz
, 486 U.S. at 536. Second, if the court determ ines that “the challenged actions involve an elem ent o f

c h o ice or judgm ent,” the court then “determ ine[s] ‘whethe r that judgm ent is of the kind that the discr e t i on ary function exception was designed to shield.’” S abow
, 93 F.3d at 1451 (quoting G aubert
, 4 99 U.S. at 322–23). “More specifi c a l ly, if the judgm ent involves considerations of social, econom ic, or political policy, the exception applies.” Id. (cleaned up).N I EVE S M AR T I NE Z V

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1. W ere the agents’ acts discretionary?

a. The w indshield wiper fluid test a n d the drug dog sniff test.

The Nieves fam ily contends that th e agents had a

m andatory d

uty to follow the proper testing p r o tocols when testing the w indshield wiper fluid and co n du cting the drug dog sniff test. But the Ni e ves fam ily points to no “federal statute, regulation, or policy [ that] specifically p rescribes a

course of action for an em ployee to follow” when conducting either the w indshield wi p er fl uid test or the dog sniff test. Berkovitz
, 486 U.S. at 5 36. F irst
, no evidence suggests that the agen t s ne glected a m andatory protocol when they field tested the windshield wiper fluid. The test kits contained a warning indicating they were not designed for liquid sam ples but that liquids could be tested “by placing the tip of . . . a 1

cm square (roughly 1 /2 ” s quare) piece of paper into the liquid[]” and then air drying the liquid sam ple. The guide also indicated that a second test could be perform ed to confirm whether the s ubstance detected by the f irst test was

am phetam ines o r m eth am

p h etamin es. T h e test in structions do
not state th at further tests are m andatory, only that they should be p erform ed in sequence if p erform ed at all

. The Officer’s Handbook and Law of S earch protocols are silent on use of field tests.

The fact that the test kits contained instructions for testing liquids despite counseling a g a i nst using them to test liquids indicates that the k its’ instructions do n ot constitute a

m andatory p o l i c y precluding the agents from testing liquids using th e k i ts. Further, Mendez’s decision not to conduct a second test to d eterm ine if the liquid was an am phetam ine o r

me th am phetam ine is not contrary to any m andatory federa lN I EVE S M AR T I NE Z V

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l a w or p olicy. Thus, the agents w ere not subject t o a

m andatory 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 d iscretionary-function exception
test.

Next, we exam ine whether there was a m andatory policy

or procedure f

or the dog sniff test. The Nieves fam ily’s expert witness opined at summ ary judgm ent that the agents’ search of the Nieves f

am ily’s vehicle w as “n o t com plete, thorough

or within establ i s h ed and acceptable canine training, hand ling, utilization, and/or practices or procedures and techniques

. . . .” But their expert conceded that the dog h ad behavioral changes corresponding with an alert, that all dogs alert differently and that an alert is a subjective determ ination of a dog’s ha n d l e r

. The district court concluded that the Nieves fam ily’s expert did n ot offer his opinion based on personal knowled g e an d did n ot state that the dog did not alert at all, b ut rather the expert stated th at the agent should have allowed the dog m ore follow through after the dog’s detection sig n a l
, and “should h ave taken additional steps to

m ak e sure the dog alerted to an illegal substance.” The district co urt also found that the expert’s opinion lacked adequate fo undation and was speculative, and thus, did not consider the expert’s opinion. 1 The expert testified that based

on hi s “ g ut” interpretation of events, there was “a lot o f pressure” o n the agents to find contraband in the v ehicle and

1 A t summ ary judgm ent, courts m ay decline to consider “unsupported speculation and subjective beliefs” in expert testim ony and testim ony t hat i s n o t founded i n fact. See Guidroz-Brault v. Missouri Pac. R.R. Co.
, 254 F.3d 825, 829–32 (9th Cir. 2001). Thus, the district c o u rt p roperly excluded the expert’s conclusions that were b a s e d on speculation and “gut” interpretation.N I EVE S M AR T I NE Z V

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that that pressure m ay have influenced Ag e n t Roden’s interpretatio n of the dog’s actions. But the expert’s skepticism is not equivalent to a man datory policy o r procedure that was ignored by the agents.

b. The interview and detention.

Even if the agents’ actions involved elem ents o f discretion, agent s do not have discretion to violate the Constitution. See Galvin v. Hay
, 374 F.3d 739, 758 (9th Cir. 2004). The Nieves f

am ily’s false im

prisonm ent and assault claim s are prem ised on the assert i o n that the agents acted

un co n stitu

tio n a lly d urin g N iev e s Martinez’s interv iew
, arrest, and 40-day detention. Thus, the Nieves fam ily asserts that the agents’ actions are not discretionary acts prote c ted by the discretionary-function exception to the FTCA.

The court first addresses the Nieves fam ily’s argum ent that Casillas’s interrogation of Nieves Martinez violated the Constitution. In support of this argum ent, the Nieves f am ily cites F are v. Michael C.
, 442 U.S. 707 (1979), He nr y v. Kernan
, 197 F.3d 1021 ( 9 th Cir. 1999), and Moran v. Burbine
, 475 U .S. 412 (198 6 )

. No ne o f these cases provide strong support for the Nieves fam ily’s clai m that the agents exceeded their constitutional authority.

Th e Nieves fam ily cites F are for the proposition that a suspect may not be “worn down b y im proper interrogation tactics or lengthy questioni ng o r b y trickery or deceit.” See Fare
, 4 42 U.S. at 726–27. But in Fare
, the Court found that the juvenile defendant wa s n o t worn down by im proper tacti c s , trickery, or deceit. Id. Rather, it found that the juvenile had waived h is Fifth Am endm ent rights after being advise d of his Miranda rights even though he had beenN I EVE S M AR T I NE Z V

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denied the right to speak with his probation officer. Id. “[N]o special factors indicate[d] that the [defendant] w as unable to understand the nature o f h i s a c t ions.” Id. at 726. T hus, Fare does not support a conclusion that the United States violated Nieves Martinez’s rights during the interrogation.

The Ni e v es fam ily cites Henry for the proposition that a coercive interrogation can unde rmi ne 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 term inate questioning after a suspect asked f or an attorney, in deliberate violation o f Miranda and im plied that his
statem ents w ould not be used against h im

. 1 9 7 F. 3d
at 1027–28. Here, the d i s trict court concluded that Casillas gave Miranda warnings to the adult m em bers of the Nie ves fa m ily, who then waived their rights and consented to questioning. An d th e ev id en ce s u p p o rts th is c o n clu sion. Thus,
the district court did not clearly err in concluding that th e Nieves fam ily m em

b ers receiv e d a n d waived their Miranda warnings and as a result, under Henry
, the United States did
not act unconstitutionally when interviewing Nieves Martinez.

Finally, the Nieves fam ily cites Moran for the p roposition that under certain circu

m stances, “police deception m ight rise
to a level o f a due process violation.” S e e Moran
, 475 U.S.

a t 4 3 2. But Moran states that to reach that level, the p o l i c e decep tio n m

u st “sh o ck [ ] th e sensibilities of civilized society.” Id. at 433–34. In Moran
, th e C ourt found that the officers’ failure to inform a subject who had waived his Miranda rights that an attorney was trying to contact h im did not d eprive the defendant of his due process rights. Id. at 417–18, 4 3 2. Thus, Moran does not support the N ieves fam ily’s claim s that the questi o n i ng was so coercive here as to v iolate NievesN I EVE S M AR T I NE Z V

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Martinez’s constitu

t io n al rig hts. B ecause Casillas’s interview of Nieves M a rtinez 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 fam ily’s claim that Nieves Martinez’s arrest and subsequent det e n t ion violated the Constitution.

If there were such a constitutional violation, th e n the discretionary-function except io n would not prohibit suit “under circum stances where the Un ited States, if a private
person, would be liable to the claim ant in accordance with the law of the place wh er e the act o r om ission o ccurred.” 28 U.S.C. § 1346(b)(1); Galvin
, 374 F.3d at 758. Therefore, if the discretionary-func t i o n exception is not applicable, under the FTCA, “suits against the United S tates are governed by the substantive law of the place where the act o r

om ission com

plained of occurs,” McMurray v. United States
, 918 F .2d 834, 836 ( 9 th Cir. 1990) (citing 28 U.S.C. § 1346 (1988)). Under Arizona law, a false im prisonm ent claim
requ i re s that a person b e held “without his consent and without lawful authority.” Slade v. City of Phoenix
, 541 P.2d 550, 552 (Ariz. 1975). If a detention occurs un der l e g al authority the detention is lawful. Id.

But there is no constitutional vio lation in this case. An officer can lawfull y a rrest a suspect when he or she has probable cause. “Probable cause to arrest exists when officers hav e k nowledge or reasonably trustworthy inform ation sufficient to lead a p erson of re a s o n ab le caution to believe that an o ffense has been or is being comm itted by the person being arrested.” Ro dis v. City, Cty. of San Francisco
, 558 F. 3 d 964, 969 (9th Cir. 2 009) (citation om itted).N I EVE S M AR T I NE Z V

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“Whether probable cause exists depends upon the reasonable conclusion to be drawn from the f acts known to the arresting officer at the tim e of the arrest.” De venpeck v. Alford
, 543 U .S. 146
, 152 (2004). Under som e circum stances, governm ent agents m ay m ake 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 Am endm en t r e quires a judicial determ ination o f
p robable 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 fam ily’s vehicle, indicating the presence o f an illegal substanc e th at the dog was trained to detect. At least one fi e l d t e s t kit used

on th e vehicle’s windshield wiper liquid tested positive for

m etham phetam ine. And Mendez knew from his training that drugs are som etim es smu g gled across the border in windshield wiper fluid. These facts are reasonably trustworthy inform a tion that are sufficient to lead a reasonable person to conclude that Nieves Martin e z, 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 determ ination that there was pro b ab l e cause to arrest Nieves Martinez precludes us from revisiting this issue. After an initial arrest, “the Fourth Am endm ent dem ands a p rom pt judicial determ ination o f probable cause” in o rder to continue detent i on before trial. United States v. Fernandez-Guzman
, 577 F.2d 1 09 3
, 1097 (7th Cir. 1978) (footno t e om itted) (citing Gerstein v. Pugh
, 420 U.S. 103 (1975) )

. A finding of probable cause at a prelim inary hearing is only reviewable in a subsequent civilN I EVE S M AR T I NE Z V

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proceeding when the plaintiff argues that the officers engaged in judicial deception. S

e e Wige v. City of Los Angeles
, 713 F.3d 1 183
, 1185–86 (9th Cir. 2013); Chism v. Washington
, 661 F.3d 380, 386 (9th Cir. 2011).

Here, a m agistrate judge d eterm ined at a prelimi nary hearing that the agents had probable c au s e t o arrest Nieves Martinez and to detain h i m. T hus, this court will not review that finding o f probable cause absent a showing that the agents engaged in judicial deception.

A judicial deception claim requires that the Nieves f am ily “1) m ake a substantial showing o f [t he agents’] deliberate falsehood or reckless disregard for the truth and 2) establish that, but f

or the dishonesty, [Nieves Martinez’s a rr e st and detention] would not have o ccurred.” Chism
, 661 F.3d at 386. The Nieves fam ily did not m eet their burden on either prong. First, the Nieves fa mi l y asserts that a reasonable fact finder

c ould conclude that because the test results from the laboratory were ne ga t i v e , there were no drugs in the Nieves fam ily’s car. But the test results of the windshield wiper fluid

were not received from the lab unti l weeks after the preli m i n ary hearing. At the prelim inary hearing, the

m agistrate judge was advised that the drug dog alerted twice

on the v ehicle and the wiper f luid tested positive for

m etham p hetam ines. The agents were not being deliberately

m isleading at the tim e of the hear in g when they failed to disclose test results that were not received until later.

Second, the Nieves fam ily has not m ade a s howing that had Derryberry’s affidavit not contained falsehoods, the

m agis tr at e judge’s finding would have changed. Even if Derryberry included in the affidavit that Nieves Martinez later recanted his confession, the m agistrate judge would notN I EVE S M AR T I NE Z V

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have had reason to know during the prelim inary hearing that Nieves Martinez’s car d i d n o t contain drugs o r that his original confession was false. The m agistra te judge would have still known that Nieves Martinez confessed to

sm uggling d rugs, the dog alerted to the vehicle twice, and the field test was posi t i ve for m etham phetam ine. Thus, the

m agis tr at e judge’s finding w ould not have changed if the affidavit stated that Nieves Martinez recanted his confession.

To th e extent the Nieves fam ily relies on the determ ination in thei r civil action that a reasonable trier o f fact co u l d conclude that the dog-sniff and windshield fluid
test were n ot perform ed with the appropriate care, this determ in a ti o n is irrelevant b ecause it was based o n facts occurring after the probable cause hearing.

Because N ieve s M artinez’s d etention was b ased on a valid finding of pr o b able cause and n o violation of the C o n stitu tion has been shown, the district court properly f ound that the agents’ acts were d iscretionary under the first p rong of the discretionary-function exception. 2

2. Did the acts involve considerations of social,

econom ic, or political policies?

At step two of the discretionary

- function test, the court

c o nsiders whether the investigative actions invol v e consideratio n s o f s o cial, eco n o m ic, o r p o litical p o licy

. Sabow
,

2 To the extent th a t t

he N ieves Fam ily’s assault claim is based o n contact Nieves Martinez recei v e d while i n detention, it is also barred b y the discretionar

y -function exception. The Nieves fam ily did not allege any tortious conduct while Nieves Mart i n ez was d etained o ther than routine contact necessary during the detention process.N I EVE S M AR T I NE Z V

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93 F.3d at 1451. Here, the agents we r e acting to carry o ut a crim inal investigation when they detained the Nieves fam ily. Because “[t]he investigation of crim e involves policy judgm ents at the core of the executive branch[,]” the c o urt presum es that the “agent[s’] acts are grounded in p ol i cy[.]” Gonzalez v. United States
, 814 F.3d 1022, 1028, 1032 (9th Cir. 2016). The inquiry is not f oc u s e d o n the “agent’s subjective intent in exercising the discretion conferred by
sta tute or regulation, but on the nature of the actions taken and on whether they are s u s c e ptible to policy analysis.” Ga u b e r t , 499 U.S. at 325 (footnote o m itted) “The decision need n o t actually b e grounded in policy considerations so long as i t is, by its nature, susceptible to a policy analysis.” Gonzalez
, 8 1 4 F.3d at 1 022, 1027–28, 1032 (9th Cir. 2 016) (quoting GATX/

Ai rlog C o. v. United States
, 286 F.3d 1168, 1 174 (9th Cir. 2002)). When a court determ ines that a n agent’s actions ar e subject to discretion, a “‘strong presum ption’ ar ises that the [] actions were grounded in
p ol icy considerations.” Id. at 1032 (quoting Gaubert
, 499 U.S. at 324).

Here, the agents we r e carrying o ut a crim inal investigation when they detained the N ieves fam ily. Because “[t]he investigation of crim e involves policy judgm ents at the

core of th e executive branch[,]” the nature of the agents’ condu ct at issue here “clearly involves the type of policy judgm ent protected by the discretionary function exception.” Id. (noting that in vestigative agents “m ust consider the reliability of the inform ation, the relative im portance of the

c r i m e, and the agency’s m ission and resources”). “[I]n th e absence of m andatory d irectives govern i n g how to p erform inv estig atio n s, th e d iscretionary-function exceptio n b ar[ s] th e p laintiffs’ claim s relating to the n egligent conduct of th e investigation. That holding applies to any crim inal or quasi-N I EVE S M AR T I NE Z V

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crim inal investigation

. . . . ” Alfrey v. United States
, 276 F.3d 557, 565 –6 6 (9th Cir. 2 002) (footnote and internal citation

om itted). 3

Whether the agents negligently carried out the liquid drug
test and dog sniff test is imm aterial to the analysis under the discretionary-function exception. S ee Kenne wi ck Irrigation Dist. v. United States
, 880 F.2 d 1 01 8, 1029 (9th Cir. 1 989) (recognizing that if negl i g ence defeated the d iscretionaryfunction exception, the exception would be useless). When a function is “m inisterial” and “subje c t to external, objective professional standards,” negligent perform ance of that function m ay fall under the FTCA. Al frey
, 276 F.3d at 567. But, as here, when choi c es involve a high level o f professional judgm ent, training, and e xperience, those judgm ents involve policy considerations even when do n e negligently. See Alfrey , 276 F.3d at 567.

The discretionary-function exception, however, does not

ap p l y to law enforcem ent investigations when a federa l

em ployee’s tactics during an investigation had “no legitim ate policy rationale.” Sabow
, 93 F.3d at 1 454. The Nieves f am ily urges the court to find that here, as in this court’s d ecision in Sabow
, the agents’ actions when they interrogated Ni e ves

3 Th e FTCA contains a law enforcem ent clause that extends the United States’s w aiver of sovereign i m m unity to claim s ag a i ns t l aw enforcem ent officers for eleven intentional t o rt s , including assault and false im prisonm ent. 28 U .S.C. § 2680(h). In the N i n th C i rcuit, if the United States shows t

hat the intentional tort alleged under § 2 680 (h ) is

exem pt under the discretionary-function exception, the plaintiff’s claim is barred. Gas ho v. United States
, 39 F.3d 1420, 1433 (9th Cir. 1994). Because the discretionary-function exception bars the N ie v e s F am ily’s assault and false im

prisonm ent claim s, the court does not discuss whether sovereign imm

unity is waived under § 2680(h).N I EVE S M AR T I NE Z V

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Martinez h ad no legitim ate policy rationale. The Nieves fam ily argues that law enforceme n t agents terrorized and browbeat Nieves Martinez and frightened him b y threatening that his son and wife would be incarcerated in federal prison for 15 to 3 0 y ears, and his daughter would be kept in custody in the United S tates. But such m ethod o f interrogation did not lack any p olicy rationale—his interro gation was furthering an investigation m eant to reduce the illegal transfer of drugs

across the border. Thus, even though Casillas’s actions m ay hav e b een n egligent and even abusive, they are not

com pletely la c k i ng legitim ate policy rationale and they are shielded by the discretionary-function exception.

Because the age n t s’ discretionary judgm ents involved social, econom ic, or p o litical co n siderations, and their actions did not violate Nieves Martinez’s constitu t ional rights, we affirm the district court’s discretionary-function ex c eption determ ination as it relates to claim s arising out of the alleged assault, negligence and gross negligence, and false im prisonm ent of Nieves Martinez an d his fam ily.

II. Should This Court Di s m iss the Nieves F a mily’s Appeal o f the District C ourt’s Order Followi ng the Bench Trial on the Intentional Infliction of Emotion Dis tress Claim Because the Nieves Family Failed to Include Key Trial Testimony?

W e m ay a ffi rm the district court’s judgm ent against the Nieves fam ily as to the intentional in fl i c tion o f em otion distress claim for the sam e reason we affi rm th e district court’s determ ination as to the Nieves fam ily’s o ther tort claim s. The dis trict court d id not clearly err in finding that C asillas’s interrogation of Nieves M a rtin ez w as n o t m o t iv ated by racial anim

us and th erfore did not constitute aN I EVE S M AR T I NE Z V

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constitutional volation, see infr a

. The Nieves f am ily d o not have any o ther valid constitutional challenge to the interro g atio n , a

n d t h e d iscretion ary f

un ctio n ex cep tio n ap p l i e s to bar their intentiona l i n fliction of em o tion distress claim

. The N iev es f

am ily ’s challenge to the district court’s judgm ent

as to this claim following the bench trial also fails for another indep en d e nt grounds: their failure to include key trial testim ony.

“If the appellant intends to urge on ap p e a l that a finding

or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant m ust in cl u d e in the record a transcrip t of all evidence relevant to that finding o r conclusion.” Fed. R. App. P

. 10(b)(2). “Based on this rule, we have held that failure to p rovide relevant portions of a transcript m ay require dism issal of the appeal.” Syncom Cap. Corp. v. Wade
, 924 F.2d 1 6 7
, 16 9 (9th Cir. 1991); Portland Feminist Women’s Health C tr v. Advoc

. f

o r Life, Inc.
, 877 F.2d 787, 789–90 (9th C ir. 1989) (refusing to consider an argum ent because the party bearing the burden of providing

a transcript of the evidence of a contem pt hearing f

ailed to do so); Sw. Adm’rs, Inc. v. L opez , 781 F.2d 1378, 1380 (9th Cir. 1986) (dism is s i ng the appeal because of the appellant’s failure to provide a trial transcript).

The United States argue s that we should dism iss the Nieves fam ily’s appeal or affirm the district court’s fa c tu al findings following the b ench trial because the Nieves f am ily failed to include key evidence in its excerpts of record. H ere, the Nieves fam ily did include som e of the transcripts f rom the h ea r i n g in the excerpts o f record, but they failed to include transcripts of Casillas’s testim ony, Casillas’s report, Casillas’s n otes from the interrogation, testim ony of theN I EVE S M AR T I NE Z V

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United S tates’ expert on interviewing techniques
, and Derryberry’s reports.

In their appeal, the Nieves fam ily challenges the d i s trict court’s conclusion that the United S tates did not c omm it intentional infliction of em o tion distress during Casillas’s interrogation of Nieves Martinez and its conclusion that the discretionary-function exception shielded Casillas’s actions. The d istrict court found that the discretionary-function exception applied b ecause Casillas w as not m otivated by racial m alice, but instead by a desire to protect the public from drug trafficking. The d istrict court’s fa c tual findings

were supported by Casillas’s testim ony that: he was bilingual and grew up i n Yum a, Arizona; he did not state during the interrogation that “all Mexicans are drug dealers”; he would

never h ave ma d e such a statem ent, because his p arents are Mexican; h e interacts with people from Mexico daily but does not arrest or interview all o f them ; a n d his m o tive was to apprehend p eople who comm it crim es. Because the Nieves fam ily did not include C asillas’s testim ony in the record on appeal, it did not “ in clude in the record a transcript o f all evidence relevant” to a finding or conclusion that the district
court clearly erred when it d eterm ined that Casillas wa s not

m otivated by m alice during the interrogation. F ederal Rule o f Ap pellate P rocedure 1 0 (b )(2 ) req u i r es th e ap p ellan

t to in clu d e

a transcript of all evidence relevant to the court’s fin d i n g o r conclusion. Thus, under this court’s p recedent, this claim is dism issed for failure to provide relevant evidence on appeal.

CONCLUSION

The discretionary-function exception applies to the Nie ves fam ily’s claim s of n egligence, gross negligence, assault, false im

prisonm ent, and intentional infliction o fN I EVE S M AR T I NE Z V

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em otional distress. Thus, the Nieves f am ily’s appeal on those claim s is dism issed for lack of jurisdiction.

W . FLETCHER, Circuit Judge, dissenting:

In August 2011, Arm ando N iev e s Martin ez and his f am ily l eft their hom e in Mexico for an overnight shopping tri p t o Arizona. Federal Border Patrol agents stopped the fam ily at

a checkpoint based on a suspicion that their vehicle contained illegal drugs. After perform ing a drug test in a m a nn e r th at violated the m andatory t est protocol and erroneously concluding that the windshield wiper fluid contained i l l e g al drugs, and afte r coercing N ieves into m aking a false confession by threatening to im prison his wife and two teenage children, federal authorities im prisoned Nieves for forty days. N ieves was released after a properly performe d drug test revealed that the fluid contained no drugs.

Nieves and his f

am ily brought suit under the Federal Tort Claim s Act. My colleagues conclude that the suit is barred by the discretionary function exception. I strongly b u t respectfully dissent.

I. Background

Nieves is the patriarch o f a Mexican fam ily with a prosperous grape-growing business in Sonora, Mexico. The annual g ross incom e of the b u s iness is about three m illion dollars. Nieves and his f am il y typ ically traveled across the border into the United States five or six tim es a year. On the

m orning of August 1 8, 2011, Nieves, his wife, their eighteenyear-old s on, and their fourteen-year-old daughter, left theirN I EVE S M AR T I NE Z V

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home i n th e town of Caborca, in Sonora, Mexico, in the fam ily’s Ford Exp lo r e r SUV. T h ey intended to drive to Chandler, Arizona, stay there overnight, and return to Mexico the next day. They had a reservation at the W indm ill Inn in Chandler, where they had stayed four or five tim es before.

The Border Patrol had been tipped to expect a vehicle

com ing n orth sm

uggling drugs, and Nieves’s SUV matched

a general d e s c r i ption of the vehicle. There are two checkpoints between the border and Chandler.

Nieves and his fam ily crossed the b o rd er w ith o ut in cident. At the first checkpoint, they showed their visas and perm its. A drug-s n i ffing dog inspected their SUV without alerting, and they were allowed to drive on. Agents at the first checkpoint ca lled ahead to the second checkpoint to alert them tha t the Nieveses were com ing toward them

. A t the second checkpoint, a drug-sniffing dog “alerted” to the front grill area of the SUV, a n d Border Patrol agents directed Nieves to drive to th e secondary inspection area. At secondary, Nieves and his fam ily w ere directed to get out o f the S UV. The dog again “alerted.” Bas e d on the agent’s description o f the dog’s behavior, the Nieveses’ expert witness characterized the dog as having “sniffed” a n d as having h a d “ i ndicators,” but not as h aving given an actual alert.

Border Patrol agents at the second checkpoint separated Nieves from his fam ily and p laced him in handcuffs

. Nieves’s wife, son, and daughter were taken to a trailer at the checkpoint. Agent Casillas told Nieves that he and his f am ily were in trouble because drugs had been found in their SUV. The Nieves fam ily and the SUV were then d riven f rom the checkpoint to a Bor d e r Pa trol station thirty to forty m inutesN I EVE S M AR T I NE Z V

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away. Nieves and his fam ily were placed in separate holding cells at the station. His daughter was placed in a cell with her

m other. She a n d h e r mother w ere later allowed to sit in the waiting area of the station.

Agent Mendez w as asked to help search the vehicle. He decided to test the SUV’s windshield wiper fluid using a field drug test kit. The kit instructions specified that a liquid could be t e s t ed by w etting paper w ith the liquid, drying the paper, and p u t ting the paper in a test pack. The instructions were

em phatic as to the type of paper re qu i red: “The choice o f
paper is critical. Unscented, uncolored filter p ap e r is ideal. NEVER use brown paper, hand towels or newsprint.” (Em phasis in original.)

Contrary to the instructions, Agent Mendez used a paper hand towe l to perform Test A. H e wrapped a p iece of the h an d towel around a stick, dipped the stick into th e windshield washer fluid, took the paper off the stick, dried the
paper, and tested the dr i e d paper. He then repeated Test A
, perform ing it in the sam e m anner. Ba s e d only on Test A
, M e n d e z c o n c l u d e d t h a t t h e l i q u i d c o n t a i n e d

me t h a mp h e t a mi n e

. M e n d e z t e s t i f i e d th a t t o h i s “recollection” both Tes t A tests were positive for

m etham phetam ine. Agent Reno testified that only the second test was positive.

If properly perform ed, Test A presum p tiv ely in d i c ated the
presence of eithe r m etham phetam ine or am

phetam ine. The
test kit instructions specified that if a certain color result was obtained on Test A, indicating the possible presence of either drug, Test U w as required to determ ine which o f the two drugs, if either, had been detected. If T est A had given a false positive, Test U could reveal that n either m eth am phetam ineN I EVE S M AR T I NE Z V

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nor am phetam ine was p resent. Agent Men d e z testified that photographs i n the record showed all of the tests he perform ed. None of the photographs show Test U.

Nieve s was interrogated at the station. He denied any knowledge of drugs in the SUV. At som e point during the interrogation, Agent Mendez told A g ent C asillas that the drug
test had detected m etham

phetam ine in the windshield washer fluid. C asillas then told Nieves that th e y h a d “found the drugs,” and that he w as g oing to spend fifteen years in prison. Casillas told N ieves that if he did not confess, his wife would be sent t o a p r ison in Kentucky, his son would be sent to a federal prison, and h is daughter would be p l a c e d in U.S. custody. Casillas told Nieves that he should “have the balls
to save [his] f

am ily from jail.” Nieves feared that he would never see his fam ily again and broke down weeping.

Agent Casillas brought Nieves’s wife an d son into the interrogation room

. Nieves and his wife decided that Nieves should provide a false confession in order to save the rest o f
th e f am ily. After N ieves “confessed,” he was ag a i n handcuffed. He was d

riven to Phoenix in a patrol car,

accom p anied by Casillas. Du r i n g the drive, Casillas told Nieves that his fam ily was going to prison if he di d n o t provide m ore details. Nieves provided m ade-up details, but then told C asillas that h e could no longer continue lying; that he h a d comm itted no crim e; and that if there were drugs in the vehicle they w ere n ot his. Later, at the U.S. Marshal’s Office in Phoenix, Nieves was interrogated by two different agents. Nieves insisted to them that he was innocent and that he had confessed only in order to s a ve h is fam ily. Nieves’s wife and children were released by the Border Patrol at about 6:00 p.m . that evening.N I EVE S M AR T I NE Z V

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On August 19, the governm ent filed a crim inal com plaint against Nieves, chargin g h i m with conspiring to sm uggle 500 or m ore gram s of m etham p hetami n e into the United States. On Septem

ber 23, the governm ent filed a mo t ion to dism iss the com

plaint after additional testing reveal e d that there had been no m etham p hetam ine in the windshield washer fluid. Nieves was then re l e a se d
, after f orty days o f im prisonm ent.

After Nieves w as released and allowed to return h om e to Mex i c o , he was a changed m an. H e had nightm ares two o r three tim es a week. N ieves’s wife testified, “He never went back to being the sam e p erson, never again, and neither [did] the children.” While Nieves was im p risoned in the United States, his wife and children did not leave their house in Mex i c o b ecause they did not want to tell people what h ad happened to them in Arizona. Both of Nieves’s children were traum atized, an d h is son received therapy. The Am erican consulate repeatedly told Nieves’s wife and daughter, and separately told Nieves and h is son, that they were “drug dealers.” All m em

bers of the fam ily have been denied visas. Nieves’s daughter had w anted to attend school in the United States, b ut was unable to do so because she w as denied a visa.

Nie v e s and h is f

am ily brought suit against the United States under the Federal Tort Claim s Act (“ FTCA” ). The United States m oved for summ ary judgm ent on the ground that it w as protected from suit by the dis c r e t i o n ary function exception to the FTCA. The m otio n was referred to a

m agistrate judge who concluded:

The agents’ decision to fi e l d test the windshield washer fl u id for drugs was a discretionary choice. However, h aving m adeN I EVE S M AR T I NE Z V

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that choice, the agents were o bliged to perform the test in a m anner c a l culated to

ensure its a ccuracy, that is, to follow the instructio n s o n the kit. A reasonable trier o f fact could conclude that the agents did not do that. A reasonable trier of f act could f

ind that the agents fa i l e d to perform the test in accordance with the kit ’ s instructions, in particular, they failed to perform the U te st, without which, the test had no scientific value.

Because Agent Mendez violated the test’s m andatory protocol and incorrectly concluded that the liquid had tested positive for m etham

phet a mine, the m agistrate judge

recomm ended that the d iscretionary f un c tion defense be rejected, and that summ ary judgm ent to the United States be denied.

Th e district court rejected the recomm endation o f the

m agistrate judge. Relying on the discretionary function defense, the court gra n t e d summ ary judgm ent to the United States on all of the Nieveses’ claim s except intentional infliction of em otional distress. A fter a bench tria l on that claim
, the court granted judgm ent to the United States based

on the discretionary function defe n s e

. In its order denying

summ ary judgm ent at the e n d of the trial, the district court

wro t e: “D esp ite Border Patrol’s negligent an d in accu r ate f ield
t e s ting of the suspected liquid m etham phetam ine,

. . . the discretionary function exception applies.”

The Nieveses tim ely appealed.

I strongly but respectfully disagree w ith my coll eagues. Agent Mendez’s choice to pe r f orm a drug test on theN I EVE S M AR T I NE Z V

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windshield washer fluid w as discretionary. But once having

m ade that choice, he did not have discretion to d isregard the
test kit’s m andatory testing p rotocol. Because he d i d not have discretion to disregard the testing prot o c o l, the discretionary function ex c e pt ion does not shield his “negligent and inaccurate f ield testing” of th e windshield washer fluid.

II. Discussion

A . The Discretionary Function Exception

The FTCA waives the sovereign imm unity of the United States, authorizing dam age suits “for injury o r l o ss o f property, or personal injury

. . . caused by the negligent o r wrongful act or om ission of any em ployee of the Governm ent while acting within the s c ope o f his office or em ploym ent, under circum stan c es where the United States, if a private
person, would be liable to the claim ant in accordance with the law of the place wh e r e the act o r om ission o ccurred.” 28 U.S.C. § 1346(b)(1).

There a r e several exceptions to the FTCA’s waiver o f

s ov e re ign imm

unity. One of them is the “discretionary function exception.” The exception provides that the FTCA does not w aive the Governm ent’s sovereign i mmunity from “[a]ny claim

. . . based upon the exercise or perform ance o r the failure to exercise or perform a discretionary function o r duty o n the part of

. . . an e mp l oyee of the Governm ent, whether o r not the discretio n involved be abused.” Id. § 2680(a). Th e r e is no exception for the activities of law enforcem ent personnel. Indeed, in the section providing for

an exception for s everal intentional torts, the FTCA specifically excepts from that exception dam age suit s b a sedN I EVE S M AR T I NE Z V

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on “acts or omi s s i ons” of federal law enforcem ent officials for “any claim arising

. . . out of assault, battery, false im prisonm ent, false arrest, abuse of process, or m a l icious prosecution.” Id. § 2680(h).

The Sup rem e Court has addressed the discretionary function exception in five opinions.

In Dalehit e v

. United States
, 3 46 U.S. 15 (1953),

amm onium nitrite fertilizer w as being loaded onto a ship for transport to Europe under a governm ent program to increase food supplies in the afterm ath of Wo r l d W ar II. In a catastrophic accident, th e fertilizer exploded, killing 5 6 0 people and injuring 3,000 m ore. Specifications f or th e production, ba g ging, and labeling o f the fertilizer had been
set by United States em

ployees. P laintiffs alleged n egligence in setti ng the specifications. The Court held that the discretionary fun ction exception protected the Governm ent from suit on the ground th at the decisions of the em ployees in setting the spe cifications, even if negligent, “were all responsibly made at a planning rather than operational level and involved considerati o n s m ore or less im portant to the practicability of the Governm ent’s fertilizer program .” Id. at 42 (em phasis added).

In Indian Towing Co. v. United Sta te s , 350 U.S. 61 (1955), a tug boat w ent aground due to the failure of a l i ghthouse operated by the United States Coast Guard. The Court held that the FTCA’s waiver of imm unity applied even though the task of operating a lighthouse was not typically a task p erform ed by a private person. The Court held, further, that the discretionary function exception did n o t p r otect the Governm ent: “The Coast Guard need not undertake the lig h tho u se service. But once it exercised its discretion toN I EVE S M AR T I NE Z V

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operate a light

. . . and engendered reliance on the guidance afforded by the light, it was obligated to use d ue care to m ake certain that the light was kept in good working order[.]” Id. at 69 (em phasis added).

I n United States v. Varig Airlines
, 467 U.S. 797 (1984)
, a Boeing 707 m ade an em ergency landing after a fire b r o ke
out in the towel d i sposal area of one o f the lavatories. The plane landed safely, but 124 passengers were killed by toxic

sm oke. In a consolidated case, a DeHavilland Dove airplane caught f ire a n d c r a shed due to a m alfunction in a gasolineburning cabin heater. Everyone on board was killed. Plaintiffs in both cases alleged that em ployees of the Federal Aviation Authority (“FAA”) had certified the aircraft for flight after m aking o nly “spot checks” during their inspection of th e design of the aircraft, and had negligently failed to inspect the design of the towel disp o s al a r ea and the cabin heater. The Court held that the discretionary function exception p rotected the Governm ent because the decision to conduct only spot checks was authorize d b y s tatute, and because the design of the FAA’s spot check program was an adm inistrative policy decision: “Congress wished to prevent judicial ‘second-guessing’ of legislative and adminis trative decisions grounded in social, economic, and political policy thr o u g h th e m edium of an action in tort.” Id. at 814 (em ph a si s added). “It was precisely this sort of judicial intervention in policymaking that the d iscretionary function exception was designed to prevent.” Id

. a t 820 (em phasis added).

In Berkovitz v. United S

tates , 486 U.S. 531 (1988), a twom onth-old infant was given a dose of oral p o l i o vaccine. W ithin a m onth, he contracted a severe case of polio that left him com pletely paralyzed. The infant and his p a r ents suedN I EVE S M AR T I NE Z V

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the United States, alleging inter alia that em ployees in the Bureau of B iologics of the Food and Drug Adm inistration (“the Bureau”) had im

properly approved release of the lot o f

vac c in e that included the infant’s dose, in violation of the regulations governing approval. The Court h eld that the Governm ent w as not protected by the d iscretionary function exception. The Court wrote:

The regulations generally allow the Bureau to determ ine the appropriate m anner in which to regulate the release o f v accine lots, rather than

m andating certain kinds of agency action.

. . . G i v e n t h i s r e g u l a t o r y c o n t e x t , t h e discretionary f

unction exception bars any

c l a i m s t h a t c h a l l e n g e t h e B u r e a u ’ s form ulation o f policy as to the ap p r opriate way i n wh ich to regulate the release o f vaccine lots.

Id. at 546. However, “ if the Bureau’s policy leaves no room for an offic i a l t o exercise policy judgment in performing a given act , o r if the act sim ply d oes not involve the exercise o f such judgm ent, the discretionary function exception does not bar a claim that the act was n egligent or wrongful .” Id.
at 546–47 (em

p hasis added). Because the Bureau im properly released th e vaccine lot in violation o f the regulations, the discretionary function exception did not apply.

Finally, in United States v. Gaubert
, 499 U.S. 315 (1991), Gaubert was the chairm an of the b oard an d the largest shareholder of Independent Am erican Sa vings Association (“IASA”). Officials at the Federal Hom e Lo a n Bank Board (“FHLBB”) f

acilitated the m erger of IASA with a failing bank. As a condition of the m erger, officials at th e FHLBBN I EVE S M AR T I NE Z V

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and the Federal H om e Loan Bank–Da llas (“FHLB–D”) insisted that Gaubert rem ove h i ms e l f from the m anagem ent of IASA and that he post $25 mi l l ion of h is o wn real
pro p erty as security in the event that IASA’s net w orth fell below a certain level. Federal regulators at F HLBB and FHLB–D g ave business advice to IASA, including a

recomm endation that it replace its m anagem ent and b oard o f directors. One of the recomme n de d new directors was an

em ployee o f FHLB–D. IASA followed the advice of the federal regulators in all resp e c t s

. P rior to the m erger, while und er th e m anagem ent of G aubert, IASA was thought to be fina ncially sound. Soon after their appointm ent, the new board of d irectors announced that IASA had a “substantial negative net worth.” Id. at 320. Gaubert brought suit under the F TCA alleging substantial personal financial losses d ue to m ism anagem ent of IASA b y em p lo y e e s o f FHLBB and FHLB–D. The Court held that the Governm ent was p rotected by the discretionary function exception. It first held that FHLBB and FHLB–D had statutory and regulatory authority
to “supervise IASA through inform al m eans.” Id. at 331. It then held that while the actions of the em ployees of F HLBB and FHLB–D were operational in som e sense, they w ere not operational in the sense of the actions of the C oast Guard in Indian T owing and the Bu r eau in Berkovitz

. Rather than operational actions that entailed no discretion, the actions o f the em ployees of the FHLBB and FHLB–D required the exercise of business judgm ent:

Day-to-day manage me n t of banking affairs, like the management of o ther businesses, regularly requires judgment as to which of a range of permissible courses is the wisest. Discretionary conduct is not confined to the policy or planning level. ‘[I]t is the nature o fN I EVE S M AR T I NE Z V

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the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.’

Id. at 3 25 (quoting Varig Airlines
, 467 U. S. at 813 (alteration in original) (emphasis added)).

All five Sup re me Court decisions are still good law. In each of them except Daleh i t e , th e first case in the line o f decisions, the C ourt has cited its earlier d ecisions, som etim es to distinguish them and som etim es to rely on them
, but never to abandon o r weaken them

. Indeed, the Court wrote in Varig Airlines with respect to Dalehite
, “Wh ile the Court’s reading of the A ct adm ittedly has not followed a straight line, we do
not accept the supposition that Dalehite n o longer represents

a v alid interp retatio n o f the discretionary function exceptio n

. ” Varig Airlines
, 467 U.S. a t 8 1 1–12. T h e Court in Gaubert
, the last case in the line of d ecisions, discussed and relied on all four of the earlier decisions

. See Gaubert
, 499 U .S. at 322–29.

The Court’s five deci sions are nuanced and contextdependent, but we m ay synthesize them as f ollows. A policy decision—that is, a dis c re tionary d ecision—by a federal

em ployee is protected by the discretionary function exception. See Dalehite and Varig Airlines

. If a policy decision is t o b e im

plem ented in a m anner that itself allows j u dgm ent or discretion, the im p lem entation is protected by the discretionary function ex cep tion. See Gaubert

. However, i f a policy decision is to be im plem ented in a m anner th at does not allow judgm ent or discretion, the im plem entation is
not p r o t ected by the discretionary f unction exception. See Indian Towing and Berkovitz

.N I EVE S M AR T I NE Z V

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This synthesis is articulated differently, but to the s a m e effect in Alfrey v. United States , 276 F.3d 557, 561 (9th Cir. 2002), where we wrote:

W e answer the q

uestio n whether the discretion a ry

- fu n c ti o n e x c eption bars a part i cu lar claim by applying a two-part test. First, w e m

ust decide whether the challenged conduct is di s c r e tionary, that it, whether it “involv[es] an elem ent of judgm ent o r

c ho i c e.” Fang [ v. United States ], 140 F.3d [1238,] 1 241 [ ( 9th C ir. 1998)] (citing Berkovitz
, 486 U.S. [at] 536).

. . . Second, if the c h allenged conduct is discretionary, we “m ust determ ine wh et h er that judgm ent is o f the k i nd that the discretionary function exception was designed to shield.” Berkovitz
, 486 U.S. at 536.

( So me citations om itted.) S ee Sabow v. United States
, 93 F.3d 1445
, 1451 (9th Cir. 1996) (using A lfrey ’s two-part test).

The Governm ent has the b urden of d em o nstrating that the discretionary function exception applies. Gonzalez v. United States
, 814 F.3d 1022, 1 027 (9th Cir. 2016); see also Vickers

v. United States
, 228 F.3d 944, 953 (9th Cir. 200 0 ) (conclud i n g the INS “[did] not, at the summ ary judgm ent stage, m e[e]t its burde n o f d em onstrating that the discretionary function ex c eption to the FTCA barred [plaintiff’s] claimon this theory of negligence”).N I EVE S M AR T I NE Z V

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B. Violation of Mandatory Drug Test Kit Protocol

I conclude that Agent Mendez’s violation of the drug test kit’s m andatory protocol is not protected by the discretionary function exception.

1. Non-discretionary Actions

N o n -d iscretion ary actions include a wid e ran g e o f actio n s, not lim ited to those whose standards of care are prescribed in

a federal statute, re g ulation, or p olicy. The Court m ade this clear in Indian Towing
, where the s ta n d a r d of care was a general requirem ent tha t C oast Guard em ployees “use d

ue

care to m ake certain that the light was kept in good working order,” 350 U.S. at 69, and in G aubert
, where it wr o t e that non-discretionary actions could include “decisions resting on

m athem ati cal calculations

. . . involv[ing] no choice o r judgm ent,” 499 U.S. at 331.

The following cases are four, am ong m any, that illustrate the variety of sources for m andatory standards of care.

In Bolt v. United S

tates , 509 F.3d 1028 (9th Ci r

. 2 00 7), Carol B olt fell on snow and ice, breaking her ankle, in the

comm on p arking area of a U .S. Army apartm ent com plex in Fort W ainwright, Alaska. Her ankle n ever fully healed, and she was perm anently disabled. She br o ught suit under the FTCA. The Army had adopted a “Snow Rem oval Policy” for Fort W ainwright that “exp ressly im pose[d] a specific and

m andatory duty to clear Fam i l y Ho u sing Parking Areas o f

snow and ice once a year, before the e n d of March.” Id.

a t 1033. Because the Army had failed to clear the p a rk i n g area, in violation of the duty specified in its “Snow Rem ovalN I EVE S M AR T I NE Z V

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Policy,” we held th at th e d iscretion ary function exception was not a defense.

In Fang v. United States
, 140 F.3d 1238 (9th Cir. 1998), Freda Fang w as badly injured in an autom obile a c cident in Sequoia National P ark. E m ergenc y Medical Technicians (“EMTs”) em

ployed by the National Park Service responded, but Fang died while they were m inistering to h er. Fa ng’s survivor brought a wr o ngful death action under the FTCA. W e wrote, “In addit i o n t o the staffing and equipm ent levels
set by the regulations, the Park Service established c e rt ain protocols which dictate the EMTs’ r e qu ired response to a variety of m edical conditions and s i tuations.” Id. at 1242. W e d istinguishe d b etween the EMTs’ actions that were dictated b y the “m andatory” protocols and those that were

n ot

. Id. at 1242–43. Actions covered by the m andato ry protocols were not protected by the discretionary function exception.

In In re The Glacier Bay
, 71 F.3d 1447 (9th Cir. 1995), a large tanker ran aground on a subm erged rock in C ook Inlet, Alaska, resulting in a m ajor oil spill. The rock did not appear

on navigation charts prepa r e d b y the N ational Oceanic and Atm ospheric Adm inistration (“NOAA”). Plaintiffs sued under the FTCA for dam age caused b y the oil. Hydrographers em

ployed by NOAA had allegedly failed to follow m andat ory drafting protocols contained in a Departm ent of Comm erce “Hydrographic Manual” and in separate “Project Instruc t i ons” specific to the project. Plaintiffs alleged, inter a lia
, that the hydrographers violated project ins tru ctions f

or drawing sounding lines showing the depth o f the water. W e concluded, “The language o f the instructions is m an da tory.” Id. at 1452. Because theN I EVE S M AR T I NE Z V

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hydrographers allegedly violated the m andatory instructions, the discretionary function exception was not a defense.

In Kennewick Irrigation Dist. v. United S tates , 880 F.2d 1018 (9th Cir. 1989), an irrigation canal built by emp lo yees of the federal Bureau of Reclam ation broke in two p laces, causing harm to the Irrigation Distri c t

. Because a federal

em ployee had failed to follow “sound engineering practices” during construction of the canal, resulting in the breaks
, the discretionary function e x c e ption was n ot a defense. Id. at 1301–32.

2. Mandatory Drug Test Protocol

Law enforcem ent officials m ay choose to inv e stigate suspected crim inal activity in a num ber of ways. The choice of how to conduct a crim inal investigation, including the choice of how to establish probable cause, is protected by the discretionary functio n exception. See Vickers
, 228 F.3d
at 951 (“[T]he discretionar y function exception protects agency decisions concerning the scope and m anner in which it con du c t s an investigation so long as the agency does not violate a m andatory directive.”). In the case befo re us, the border patrol agents’ decisions to rely on a t i p to conclude that the Nieveses’ S UV m ight c o ntain drugs, to detain the Nieves fam ily to look for drugs in the SUV, to use drug sniffing dogs, to interrogate Nieves aggressively, and to p er form a drug test on the windshield wiper fluid were all discretionary decisions.

However, once having d ecided to use the drug test kit, Agent Mendez did not have di s c retion to violate its

m andatory protocol. Once Mendez chose to perform the drug test, he was in the sam e position as the defendants in IndianN I EVE S M AR T I NE Z V

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Towing and Berkovitz

. In I n dian T owing , the Coast Guard

m ade a discretionary choice to operate a lighthouse. Once having m ade that choice, Coast Guard o fficials were “obligated to use due care to m ake certain that the light was kept in g ood working o rder.” Indian Towing
, 350 U.S. at 69. In Berko v i t

z , the B ureau m ade a discretionary choice to release lots of polio vaccine und e r specific criteria. Once having m ade that choice, B ureau o fficials were not p rotected by the discretionary function exception when they released vaccine lots in violation o f those criteria. Berkovitz
, 4 86 U.S. at 5 4 6–47. In the case before us, the choice to perform the drug test was discretionary, but once having m ade that choice the m anner of perform ing the test was not.

The requirem ent that law enforcem ent o ffici a l s have probable cause is a bedrock constitutional requirem ent. U.S. Const. am end. IV; see B eck v. Ohio
, 379 U.S. 89, 91 (1964);

see also Nurse v. United States
, 226 F.3d 996, 1002 n.2 (9th Cir. 2 000) (“[T]he Const i tution can lim it the discretion o f federal officials such that the FTCA’s d iscretionary function exception will not app l y

. ” )

. Once h aving chosen to use a drug test to establish probable cause, law enforcem ent officials are not free to disregard the test kit’s m a ndatory testing p rotocol; to conclude that they have probable cause based on a result obtained in violation of the p r ot o c o l; to arrest and im

prison a person in reliance on the result of the im properly perform ed test; and then to hide b ehind the discretionary function exception when it turns out that the test result was erroneous.

C. Panel Majority Mistakes

The panel m ajority m akes m istakes of law and of fact.N I EVE S M AR T I NE Z V

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1. No General Presum

ption of Discretion for Actions of Law Enforcem ent Officials

The panel m ajority writes that actions of law enforcem ent officials during a crim inal investigation are presum e d t o be discretionary. Quoting selectively and com bining phrases from different parts of our opinion in Gonz a lez
, the panel writes:

Here, the agents were acting to c a rry out a crim inal investigation when they detained the Nieves fam ily. Bec au s e “[t]he investigation of crim e involves policy judgm ents at the core of the executive branch[,]” the court presum es that the “agent[s’] acts are grounded in policy. Gonza l e z v. United States
, 8 14 F.3d 1022, 1028, 1032 (9th Cir. 2016).

Maj. Op. at 23. The p anel m ajority is m istaken as a m atter o f law. Contrary to the v iew o f the m ajo ri ty , there is no presum ption that actio n s o f law enforcem ent officials, as distinct from the action s o f other f ederal officials, are discretionary.

W e d i d write in Gonzalez that “[t]he investigation o f crim e involves policy judgm ents at the core of the executive branch.” 814 F.3d 1032. This is of course true as a ge n e ra l

m atter. But it is not true fo r a l l c onduct during crim inal investigations. Indeed, after m aking this general statem ent in Gonzalez
, we went on to consider whether the specific challenged conduct was “the type of conduct to which a policy analysis could apply.” W e d id not conclu d e that b ec au se the conduct took place during a crim inal investigation it was p resum ptively discretionary. Id. at 1033.N I EVE S M AR T I NE Z V

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W e also wrote in G onzalez that there is a presum p tion o f discretion—indeed, a “s trong presum ption”—when a regulation authorizes an action that itse l f a llows d iscretion. But we did n ot write that the presum ption ap p l i es t o the actions of f

ederal law enforcem ent officials, as distinct from those of other federal officials. What we wrote, instead, was: “According to the Court, ‘if a regulation allows the em ployee discretion, the very existence o f the reg u l a t i on creates a strong presum

ption that a discretionary act authorized by the regulation involves consideration of the sam e policies which led to the prom

u lgation of the regu l a t ions.’ Gaubert
, 499 U.S. at 324.” Id. at 1028. “Because we conclude above that the Guidelines p ermit d iscretion, a ‘strong p resum ption’ arises that the FBI ’s actions were grounded in policy considerations.” Id. at 1032 (em phasis added).

Contrary to the view o f the p anel m ajority, there is no presum ption of d i s cretion that the m anner in which Agent Mendez perform ed the drug test was disc r etionary. His decision to test the windshield washer fluid with the drug test kit w as discret i o n a ry. But the m anner of im plem enting his dis c r etionary decision—perform ing the drug test—was not d iscretionary. The test kit contained specific a n d

unam biguous instructions th a t Mendez was required to follow.

2. Mandatory Drug Test Kit Protocol

The panel m ajority m akes two m istakes of fact.

First, the panel m ajority concludes incorrectly that Agent Men d ez detected m etham phetam ine in the wind sh i eld w a sh er fluid. It writes, “At least one field test kit used on th e vehicl e’s windshield wiper liquid tested positive forN I EVE S M AR T I NE Z V

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m etham phetam ine.” Maj. Op. at 20. T his is incorrect. Even if Test A h ad been perform ed properly (which it was not), it would have indicated only the potenti a l p resence o f

m etham phetam ine. Test A r e vealed only that either

m etham phetam ine or am

phetam ine m ight b e present. A further test—Test U—was required to d eterm ine which of the drugs (if either) was present. A gent Mendez never perform ed Test U.

Second, the test kit instructions established a m andatory protocol for testing. T he m ajority d e s c r ibes the test k it as only “contain[ing] a warning indicating they w ere not designed for liquid sam

ples b ut th a t l iquids could be tested ‘by placing the tip of

. . . a 1 cm square (roughly 1/2” square) piece o f paper into the liquid[]’ and then air drying the liquid

sam ple.” Maj. O p. at 1 5. The p anel m ajority writes, “[N]o evidence suggests that the agents neglected a m andatory protocol when they field tested the w indshi e l d wiper fluid.” Id. at 15. This is incorrect.

As recounted above, the instructions prescribed a specific protocol for testing a liquid. The instructions were em phatic

as to the type of p aper to be used: “The choice of paper is critical. Unscented, uncolored f ilter paper is ideal. N E V ER

use brown paper, hand towels o r n e wsprint.” (Em phasis in original.) The panel m ajority fails to m ention this instruction. Agent Mendez adm itted in his testim ony that he used a paper hand towel, in direct violation of the protocol:

Q: And you stated that y o u used a paper towel; is that correct?

A: Yes.N I EVE S M AR T I NE Z V

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Q: What kind of paper towel was it?

A: Like a brand? You’re asking m e a brand or—it was a paper towel. I opened up a package and I used one of those.

Q: You m ean b y p ape r towel one of those towels you use to rinse your hands or dry your hands?

A: Yeah.

Th e pa nel m ajority also m aintains that Test U was no t required if Test A was po sitive. It writes, “The test instructions do not state that further tests are m andatory, only that they sh ou l d b e perform ed in sequence if perform ed at all.” Maj

. Op. at 1 5. This, too, is i n c o rrect. The test kit instructions specify that T est A is not a “ s t a n dalone” test. Even assum ing (contrary to the evidence) that Agent Mendez had perform ed Test A properly and that the result was reliable, a positive result from Test A could establish only the
presum ptive presence of either m etham phetam ine o r

am phetam ine. A further test—Test U—was require d to determ ine which of the two substances, if either
, was present. The instructions specify:

EXAMPLE: Beginning with Test A, a suspect

ma terial sequences from orange to brown within 10 to 1 2 s ec o n ds.

. . . T est U com es

n e x t i n sequence. A blue result in Test U confirm s th e presence of Metham phetam ine. A reddish-pink o r negative result in Test U indicates an Am

phet am ine-type com

pound.N I EVE S M AR T I NE Z V

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Only by following the proper sequence of tests from A to U is a positive result obtained

. (Em phasis added.) If Mendez h ad perform ed Test U, the test would have revealed that neither m etham phetam ine nor

am phetam ine was present in the windshield washer fluid.

The m agistrate judge wrote, “A reasonable trier of fact could find that the agents

. . . failed to perform the U t e s t, with o u t which, the test had no scientific value.” (Em phasis added.) I would state the m a t t e r mo re em phatically. A s noted above, A gent Mendez testified that the photographs introduced into evidence showed all o f the tests that had been perform ed on the windshield washe r fl uid. There was no photograph showing that Test U had b een perform ed. As a consequence, a reasonable trier of fact would be required to find that the agents fa i l e d to p erform the U test, without which the test had no scientific value.

Conclusion

Agent Mendez m ade a discret i o nary decision, as part o f his c r i m inal investigation, to u se a field drug test kit to test the w inds h i e l d washer f

luid in the N ieveses’ SUV. The kit specified a m andatory protocol fo r testing fluids for drugs. Mendez did not have discretion to ignore th a t p rotocol. Mendez failed to follow the m andatory proto c o l wh en he perform e d Test A, and he failed entirely to perform the

m andated Test U.

After negligently perform ing the drug test, A g ent Mendez reported erroneously to Agent Casillas that the drug test h ad detected m etham

phetam ine. Casillas arrested Nieves o n the

assum ption th a t m etham

phetam ine had been found, and theN I EVE S M AR T I NE Z V

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Governm ent then crim inally charged him with sm u gg l ing

m eth am p h etam ine. Nieves, an innocent m an , w as im p riso n ed for forty days based on Mendez’s m istake. Because Mendez failed to fo l l o w th e m andatory p rotocol of the drug test kit, the discretionary function exception is not ava i l able as a defense.

I strongly but respectfully dissent.