FILED NOT FOR PUBLICATION FEB 08 2013
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10556
Plaintiff - Appellee, D.C. No. 4:11-cr-00043-CKJ- HCE-1 v.
JUAN CARLOS GARCIA-RIVAS, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted January 15, 2013 San Francisco, California
Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.
Juan Carlos Garcia-Rivas appeals his conviction under 8 U.S.C. § 1326(a),
enhanced by 8 U.S.C. § 1326(b)(1), for illegally reentering the United States after
having previously been deported. We have jurisdiction pursuant to 28 U.S.C. §
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1291. We affirm in part, vacate in part, and remand for further proceedings
consistent with this disposition.
The district court did not err in concluding that it was legally irrelevant that
Garcia-Rivas was trying to leave the country when he was stopped and detained by
Customs and Border Protection (CBP). Garcia-Rivas may have been able to avoid
prosecution for illegal reentry by leaving the country before being caught, see
United States v. Ayala, 35 F.3d 423, 425 (9th Cir. 1994), but the mere fact that
Garcia-Rivas was headed toward the border with the intent to leave the country
when he was apprehended does not undermine the conclusion that he was “found
in” the country after illegally reentering, 8 U.S.C. § 1326(a)(2).
Nor did the district court err in concluding that Garcia-Rivas was provided
an adequate Miranda warning. Providing “different and conflicting sets of
warnings” to an individual may undermine the adequacy of a Miranda warning,
United States v. San Juan-Cruz, 314 F.3d 384, 387–88 (9th Cir. 2002), but the
warnings here were not conflicting. Garcia-Rivas was meaningfully advised of his
Miranda rights, see United States v. Connell, 869 F.2d 1349, 1351 (9th Cir. 1989),
and he was not affirmatively misled, see San Juan-Cruz, 314 F.3d at 387.
The district court did, however, err in its consideration of whether there was
probable cause to arrest Garcia-Rivas. Though law enforcement officers protecting
2 our border have more leeway than law enforcement officers in other settings with
regard to searches and detentions, probable cause is still required for arrest. See
United States v. Hernandez, 322 F.3d 592, 596 (9th Cir. 2003); United States v.
Bravo, 295 F.3d 1002, 1005–06 (9th Cir. 2002). The district court’s conclusion
that there was probable cause was based on three facts: (1) that Garcia-Rivas told
CBP that he was in the country illegally, (2) that Garcia-Rivas seemed nervous
when stopped by CBP, and (3) that Garcia-Rivas refused to provide identification
when asked to do so by CBP. Applying the “totality of the circumstances” test for
determining whether there was probable cause for arrest, see John v. City of El
Monte, 515 F.3d 936, 940 (9th Cir. 2008), we find these facts insufficient to
support a finding of probable cause.
Our law is clear that illegal presence in the country is not sufficient to
support a finding of probable cause for arrest. Any confusion on this issue was
eliminated by our opinion in Martinez-Medina v. Holder, 673 F.3d 1029 (9th Cir.
2011). In Martinez-Medina, we affirmed that the law of the circuit, previously set
forth in Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983), overruled in part
on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th
Cir. 1999) (en banc), is that “an alien who is illegally present in the United States .
. . [commits] only a civil violation” and that “admission of illegal presence . . .
3 does not, without more, provide probable cause” for arrest. Martinez-Medina, 673
F.3d at 1036 (quoting Gonzales, 722 F.2d at 476–77). We did not equivocate on
these points, asserting that they “were, and remain, the law of the circuit, binding
on law enforcement officers.” Id.
Nervous behavior is a factor that may contribute to a finding of probable
cause. See, e.g., United States v. Lim, 984 F.2d 331, 337 (9th Cir. 1993). But,
depending on the circumstances, nervous behavior, even considered together with
other factors that could be indicative of the commission of a crime, may not be
sufficient to establish probable cause. See, e.g., Florida v. Royer, 460 U.S. 491,
507 (1983); cf. United States v. I.E.V., No. 11-10337, 2012 WL 5937702, at *6
(9th Cir. Nov. 28, 2012) (“[W]e join with our sister circuits that have refused to
allow police officers to justify a Terry search based on mere nervous or fidgety
conduct and touching of clothing.”). Similarly, failure to produce identification is
a factor that may contribute to a finding of probable cause, but failure to produce
identification is not necessarily sufficient to establish probable cause. See Tatum v.
City & Cnty. of San Francisco, 441 F.3d 1090, 1094–95 (9th Cir. 2006). Here, as
an alien illegally present in this country who had just been stopped by CBP,
Garcia-Rivas would of course be nervous, and it is not surprising that he would be
unable or unwilling to produce identification, whether he had committed a crime or
4 not. Given that CBP knew that Garcia-Rivas was in the country illegally at any
possible time of arrest, Garcia-Rivas’s nervous behavior and failure to produce
identification should not have suggested to CBP at the time of arrest that Garcia-
Rivas had committed a crime.
The district court erred in holding that Garcia-Rivas’s admission of illegal
presence, his nervous behavior, and his refusal to produce identification gave CBP
probable cause for arrest.
Thus, we vacate the district court’s decision with regard to probable cause.
Because the district court held that Garcia-Rivas’s admission of illegal presence,
his nervous behavior, and his refusal to produce identification during his initial
conversation with the CBP satisfied the probable cause requirement, the district
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FILED NOT FOR PUBLICATION FEB 08 2013
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10556
Plaintiff - Appellee, D.C. No. 4:11-cr-00043-CKJ- HCE-1 v.
JUAN CARLOS GARCIA-RIVAS, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted January 15, 2013 San Francisco, California
Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.
Juan Carlos Garcia-Rivas appeals his conviction under 8 U.S.C. § 1326(a),
enhanced by 8 U.S.C. § 1326(b)(1), for illegally reentering the United States after
having previously been deported. We have jurisdiction pursuant to 28 U.S.C. §
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1291. We affirm in part, vacate in part, and remand for further proceedings
consistent with this disposition.
The district court did not err in concluding that it was legally irrelevant that
Garcia-Rivas was trying to leave the country when he was stopped and detained by
Customs and Border Protection (CBP). Garcia-Rivas may have been able to avoid
prosecution for illegal reentry by leaving the country before being caught, see
United States v. Ayala, 35 F.3d 423, 425 (9th Cir. 1994), but the mere fact that
Garcia-Rivas was headed toward the border with the intent to leave the country
when he was apprehended does not undermine the conclusion that he was “found
in” the country after illegally reentering, 8 U.S.C. § 1326(a)(2).
Nor did the district court err in concluding that Garcia-Rivas was provided
an adequate Miranda warning. Providing “different and conflicting sets of
warnings” to an individual may undermine the adequacy of a Miranda warning,
United States v. San Juan-Cruz, 314 F.3d 384, 387–88 (9th Cir. 2002), but the
warnings here were not conflicting. Garcia-Rivas was meaningfully advised of his
Miranda rights, see United States v. Connell, 869 F.2d 1349, 1351 (9th Cir. 1989),
and he was not affirmatively misled, see San Juan-Cruz, 314 F.3d at 387.
The district court did, however, err in its consideration of whether there was
probable cause to arrest Garcia-Rivas. Though law enforcement officers protecting
2 our border have more leeway than law enforcement officers in other settings with
regard to searches and detentions, probable cause is still required for arrest. See
United States v. Hernandez, 322 F.3d 592, 596 (9th Cir. 2003); United States v.
Bravo, 295 F.3d 1002, 1005–06 (9th Cir. 2002). The district court’s conclusion
that there was probable cause was based on three facts: (1) that Garcia-Rivas told
CBP that he was in the country illegally, (2) that Garcia-Rivas seemed nervous
when stopped by CBP, and (3) that Garcia-Rivas refused to provide identification
when asked to do so by CBP. Applying the “totality of the circumstances” test for
determining whether there was probable cause for arrest, see John v. City of El
Monte, 515 F.3d 936, 940 (9th Cir. 2008), we find these facts insufficient to
support a finding of probable cause.
Our law is clear that illegal presence in the country is not sufficient to
support a finding of probable cause for arrest. Any confusion on this issue was
eliminated by our opinion in Martinez-Medina v. Holder, 673 F.3d 1029 (9th Cir.
2011). In Martinez-Medina, we affirmed that the law of the circuit, previously set
forth in Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983), overruled in part
on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th
Cir. 1999) (en banc), is that “an alien who is illegally present in the United States .
. . [commits] only a civil violation” and that “admission of illegal presence . . .
3 does not, without more, provide probable cause” for arrest. Martinez-Medina, 673
F.3d at 1036 (quoting Gonzales, 722 F.2d at 476–77). We did not equivocate on
these points, asserting that they “were, and remain, the law of the circuit, binding
on law enforcement officers.” Id.
Nervous behavior is a factor that may contribute to a finding of probable
cause. See, e.g., United States v. Lim, 984 F.2d 331, 337 (9th Cir. 1993). But,
depending on the circumstances, nervous behavior, even considered together with
other factors that could be indicative of the commission of a crime, may not be
sufficient to establish probable cause. See, e.g., Florida v. Royer, 460 U.S. 491,
507 (1983); cf. United States v. I.E.V., No. 11-10337, 2012 WL 5937702, at *6
(9th Cir. Nov. 28, 2012) (“[W]e join with our sister circuits that have refused to
allow police officers to justify a Terry search based on mere nervous or fidgety
conduct and touching of clothing.”). Similarly, failure to produce identification is
a factor that may contribute to a finding of probable cause, but failure to produce
identification is not necessarily sufficient to establish probable cause. See Tatum v.
City & Cnty. of San Francisco, 441 F.3d 1090, 1094–95 (9th Cir. 2006). Here, as
an alien illegally present in this country who had just been stopped by CBP,
Garcia-Rivas would of course be nervous, and it is not surprising that he would be
unable or unwilling to produce identification, whether he had committed a crime or
4 not. Given that CBP knew that Garcia-Rivas was in the country illegally at any
possible time of arrest, Garcia-Rivas’s nervous behavior and failure to produce
identification should not have suggested to CBP at the time of arrest that Garcia-
Rivas had committed a crime.
The district court erred in holding that Garcia-Rivas’s admission of illegal
presence, his nervous behavior, and his refusal to produce identification gave CBP
probable cause for arrest.
Thus, we vacate the district court’s decision with regard to probable cause.
Because the district court held that Garcia-Rivas’s admission of illegal presence,
his nervous behavior, and his refusal to produce identification during his initial
conversation with the CBP satisfied the probable cause requirement, the district
court did not need to determine when Garcia-Rivas was actually arrested. We
leave this determination, along with consideration of whether there may have been
probable cause at the time of arrest due to facts other than those discussed above,
to the district court on remand. Assuming there was not probable cause at the time
of arrest, the district court will also need to determine the impact of the improper
arrest on the inclusion of the evidence presented in support of Garcia-Rivas’s
conviction, and ultimately on the conviction itself.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
5 FILED United States v. Garcia-Rivas, 11-10556 FEB 08 2013
MOLLY C. DWYER, CLERK WALLACE, Senior Circuit Judge, concurring in part and dissenting in part: O U R T OF APPE ALS U .S. C
I concur in the majority’s conclusion that Garcia-Rivas’s subjective intent to
leave the country did not undermine the conclusion that he was “found in” the United
States for purposes of 8 U.S.C. § 1326(a). I also concur in the majority’s conclusion
that Garcia-Rivas received adequate Miranda warnings. Nevertheless, I respectfully
dissent from the majority’s probable cause analysis.
The majority explains that unlawful presence alone is insufficient to support a
conclusion of probable cause. The majority then discounts Garcia-Rivas’s nervousness
and failure to produce identification.
While I do not disagree that each factor identified by the majority—unlawful
presence, nervousness, and failure to produce identification—may not be sufficient
alone to provide probable cause, I conclude that the majority’s analysis does not
adequately assess the combination of factors that faced Officer Falcon—the initial
officer confronting Garcia-Rivas—and fails to give weight to Officer Falcon’s
experience as a border agent.
“[B]order agents . . . need probable cause to make a warrantless arrest of an
individual.” United States v. Hernandez, 322 F.3d 592, 597 (9th Cir. 2002). “Probable
cause exists when, ‘under the totality of the circumstances known to the arresting
officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime.’” United States v. Garza, 980 F.2d 546, 550
(9th Cir. 1992).
Officer Falcon stopped Garcia-Rivas as he walked southbound towards Mexico
pursuant to lawful border stop. See United States v. Seljan, 547 F.3d 993, 999 (9th Cir.
2008) (“Because searches at the international border of both inbound and outbound
persons or property are conducted ‘pursuant to the long-standing right of the
sovereign to protect itself,’ they generally require neither a warrant nor individualized
suspicion”). As he spoke with Garcia-Rivas, Officer Falcon observed that Garcia-
Rivas appeared “extremely nervous.” While from a cold record it may seem natural
for one stopped by border patrol officers to appear nervous, Garcia-Rivas’s “extreme[]
nervous[ness]” was triggered, it appears, by Officer Falcon’s inquiry as to whether
Garcia-Rivas had any “weapons, ammo, and currency over $10,000.” Because of this
nervousness, Officer Falcon suspected that Garcia-Rivas was lying to him about not
having weapons or money. Thereafter, Officer Falcon asked Garcia-Rivas for
identification, which Garcia-Rivas could not provide. Building on what he then knew,
Officer Falcon asked Garcia-Rivas whether he was lawfully in the country. Garcia-
Rivas indicated that he was illegally present in the United States.
Far from merely suggesting that Garcia-Rivas did not currently have permission
to be in the United States, Officer Falcon testified that in his experience—seven and
2 a half years as a Customs and Border Protection Officer—Garcia-Rivas’s conduct and
answers suggested that he may have “either carr[ied] narcotics into the U[nited]
S[tates]” or “guid[ed] people into the U[nited] S[tates]” and did not want to be
identified as he left the country. Based on this accumulated knowledge, Officer Falcon
took Garcia-Rivas to “secondary” and placed him in a cell.
It is not apparent to me that the district court concluded that Officer Falcon had
probable cause to arrest solely because Garcia-Rivas admitted to being unlawfully
present. Instead, the record suggests otherwise. The district court recounted all of the
above information and concluded that Officer Falcon had probable cause to arrest
Garcia-Rivas. Thus, there is no reason to focus the probable cause analysis as to
whether there could have been probable cause to arrest for illegal presence alone.
Taking this accumulated evidence as a whole, coupled with Officer Falcon’s
experience as to the significance of such evidence, see United States v. Salvador, 740
F.2d 752, 757 (9th Cir. 1984) (“Probable cause requires ‘a reasonable belief, evaluated
in light of the officer’s experience and the practical considerations of everyday life”)
(internal quotation marks omitted); see also United States v. Strong, 552 F.2d 138,
141–42 (5th Cir. 1977) (ascertaining the presence of probable cause based on
“nervousness on the part of the [detainee],” a detainee’s questionable credibility, and
a border patrol officer’s experience), I am not convinced that the district court erred
3 in concluding that there was a “fair probability” that Garcia-Rivas had committed a
crime. I would therefore not vacate and remand for further fact finding on this issue.
Nor do I find fault with the officers taking Garcia-Rivas to a “secondary” place
where computers are available to search for possible earlier infractions. Thus, I am
inclined to conclude that at worst, the officers were in an authorized border stop and
could await final determination at the nearby secondary station where computers could
be checked. See generally United States v. Martinez-Fuerte, 428 U.S. 543, 562–63
(1976) (holding that border officers have “wide discretion” to stop, question, and refer
individuals to secondary investigation at border checkpoints). Under this analysis, the
arrest did not occur until the computers had discovered his prior deportation and the
detention went beyond “holding” for border investigation to an arrest. At that point,
there was no doubt about probable cause. See 8 U.S.C. § 1326(a) (providing the
elements of the offense).