                                                                          FILED
                    UNITED STATES COURT OF APPEALS                          MAR 26 2013

                                                                       MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                       U .S. C O U R T OF APPE ALS




UNITED STATES OF AMERICA,                       No. 11-10556

              Plaintiff - Appellee,             D.C. No. 4:11-cr-00043-CKJ-
                                                HCE-1
  v.                                            District of Arizona,
                                                Tucson
JUAN CARLOS GARCIA-RIVAS,

              Defendant - Appellant.            ORDER



Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.

       The memorandum disposition and partial dissent filed on February 8, 2013

are withdrawn. A replacement memorandum disposition and a replacement partial

dissent are being filed concurrently with this Order. With the revisions made to the

memorandum disposition, the Petition for Panel Rehearing filed on February 19,

2013 is DENIED. No further petitions for panel rehearing or petitions for

rehearing en banc will be entertained.
                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 26 2013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 to suspect criminal activity is

still generally 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).1 The district court’s conclusion that there was probable cause to suspect

criminal activity 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 to suspect criminal activity, see John v. City of

El Monte, 515 F.3d 936, 940 (9th Cir. 2008), we find these facts insufficient to

support a legal arrest.




      1
         Federal immigration officers have the power to arrest an alien without
probable cause to suspect criminal activity if they “believe that the alien so arrested
is in the United States in violation of any . . . law or regulation [regulating the
admission, exclusion, expulsion, or removal of aliens] and is likely to escape
before a warrant can be obtained for [the alien’s] arrest” pursuant to 8 U.S.C. §
1357(a)(2). Because the Government did not argue until its petition for rehearing
that the arrest here was legal based on this statutory provision, that argument is
waived. See Boardman v. Estelle, 957 F.2d 1523, 1535 (9th Cir. 1992). The
Government apparently did not raise this argument before the district court either.
We offer no view on whether the Government may raise this argument on remand.

                                           3
      Our law is clear that illegal presence in the country is not sufficient to

support a finding of probable cause to suspect criminal activity. 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 . . . does not, without more, provide probable cause” to suspect

criminal activity. 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


                                           4
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

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 to suspect criminal activity.

      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


                                           5
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 to suspect criminal activity 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 lack of probable cause 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.




                                            6
                                                                            FILED
United States v. Garcia-Rivas, 11-10556                                      MAR 26 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).




                                           4
