Fedsresponseehmermotionsuppress

Case 3:16-cr-00051-BR

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BILLY J. WILLIAMS, OSB #901366 United States Attorney District of Oregon ETHAN D. KNIGHT, OSB #992984 GEOFFREY A. BARROW CRAIG J. GABRIEL, OSB #012571 Assistant United States Attorneys ethan.knight@usdoj.gov geoffrey.barrow@usdoj.gov craig.gabriel@usdoj.gov 1000 SW Third Ave., Suite 600 Portland, OR 97204-2902 Telephone: (503) 727-1000 Attorneys for United States of America

UNITED STATES DISTRICT COURT DISTRICT OF OREGON UNITED STATES OF AMERICA v.

DUANE LEO EHMER,

3:16-CR-00051-BR-10 GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION TO SUPPRESS STATEMENTS AND EVIDENCE (#1708)

Defendant.

The United States of America, by Billy J. Williams, United States Attorney for the District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel, Assistant United States Attorneys, hereby responds to Defendant’s Motion to Suppress Statements and Evidence and the supporting Memorandum (ECF No. 1708).

Case 3:16-cr-00051-BR

I.

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Government’s Position First, the United States does not intend to introduce any of defendant Ehmer’s post-arrest

statements. Accordingly, his Motion to Suppress Statements should be denied as moot.

The government does intend to introduce evidence seized following a consent search of Ehmer’s truck and horse trailer. Ehmer voluntarily consented to the search. Indeed, he signed a consent form acknowledging that he had been “advised of my right to refuse consent,” and affirmatively stating that he was giving “this permission voluntarily.” (Ex. A). “[A] district court’s determination whether a defendant voluntarily consented to a search depends on the totality of circumstances.” United States v. Washington, 490 F.3d 765, 769 (9th Cir. 2007). This Court is directed to consider five factors in determining voluntariness: (1) whether defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether defendant was notified that he had a right not to consent; and (5) whether defendant had been told a search warrant could be obtained.

United States v. Jones, 286 F.3d 1146, 1152 (9th Cir. 2002). “These factors serve merely as guideposts, not as a mechanized formula to resolve the voluntariness inquiry.” United States v.

Brown, 563 F.3d 410, 415 (9th Cir. 2009) (internal quotation marks and citations omitted).

II.

Factual Background Testimony from the arresting officers will establish that Ehmer gave his consent freely and

voluntarily. Indeed, Ehmer has not contended otherwise. Instead, he argues that his consensual searches are invalid because they were tainted by a prior unlawful search.

On January 27, 2016, at approximately 2:00 p.m., Ehmer drove his Chevrolet Tahoe with its horse trailer to the East Checkpoint near the Malheur Wildlife Refuge. He parked his truck and Government’s Response to Defendant’s Motion to Suppress Statements and Evidence (#1708)

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approached FBI SWAT team members; Ehmer gave the SWAT team officers verbal consent to conduct a safety sweep of his truck and trailer. Nothing was seized from the truck or trailer at that time and Ehmer does not contend that this initial sweep was unlawful.

Ehmer told FBI Agents Todd Scott and Nathan Eaton that he hoped to negotiate a peaceful resolution for the occupation, and he explained that he had been trying to convince the others to peacefully end the occupation. Ehmer described what he had observed during the occupation, and he acknowledged that he had brought a black powder revolver and a rifle with him to the Refuge. Ehmer’s conversation with the FBI lasted approximately 30 minutes. At the end of their talk, Ehmer retrieved his truck and departed the checkpoint.

Approximately 45 minutes later (at 3:15 p.m.), Ehmer returned to the checkpoint in his Tahoe with the horse trailer. He told the agents that he planned to leave the Refuge and return home, and he identified several individuals who remained on the Refuge and several who had left.

By 3:30 p.m., SA Scott told Ehmer that a warrant had been issued for his arrest as a result of his involvement with the Refuge occupation. Ehmer was placed under arrest, handcuffed and searched. SA Chris Hilger conducted a “safety sweep” of Ehmer’s horse trailer; his horse “Hell Boy” was in the trailer at the time. SA Hilger found a black powder revolver in Hell Boy’s saddle bag, and using instructions from Ehmer, Hilger disabled the weapon.

Thereafter, agents sought and received Ehmer’s consent to search his Tahoe and horse trailer and a separate, white Volkswagen Ehmer had rented. Nothing was recovered from the Volkswagen, but in the Tahoe agents discovered a rifle, ammunition, a cell phone, a tablet, and a maroon pouch containing $90.66 in cash and $109 in checks.

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III.

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The Consent Search Was Valid and Untainted The items the government intends to introduce from Ehmer’s Tahoe were seized pursuant

to a lawful Fourth Amendment exception: consent. Ehmer does not claim that his consent was anything but knowing and voluntary and the agent’s testimony will establish that it was freely given. Instead, Ehmer asks this Court to suppress all of the evidence seized from his Tahoe because it was tainted by the “safety sweep” of his horse trailer that uncovered the black powder revolver. Although the government does not concede that the FBI violated the Fourth Amendment by conducting a cursory search of the trailer and saddle bags, even if that search were illegal, there is no taint.

The mere fact that a lawful search follows an unlawful one does not justify suppression.

For suppression of evidence seized following an unlawful arrest or search, there must be a causal connection between the illegality and the legitimately obtained information. United States v.

Ankeny, 502 F.3d 829, 837-38 (9th Cir. 2007). Courts look to three factors to determine if a lawful consent search is tainted by prior unlawful police activity: (1) temporal proximity of the consent and the illegality; (2) the presence of intervening circumstances; and (3) the “purpose and flagrancy of the official misconduct.” Washington, 490 F.3d at 776.

The Ninth Circuit also recognizes three distinct but related exceptions to the taint doctrine: independent source, attenuation, and inevitable discovery. United States v. Ramirez-Sandoval, 872 F.3d 1392, 1396 (9th Cir. 1989). The doctrines are “closely linked” but share the same core inquiry: would the police have discovered the evidence if the misconduct had not occurred? Id. ///

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As applied to the facts in this case, there is simply no connection between the search of Hell Boy’s saddle bags and the subsequent consent search. Ehmer had already told the FBI during his initial, voluntary encounter with the agents that he had brought a revolver and rifle with him to the Refuge; the firearms would have been seized and secured at some point following his arrest. And there is no claim that Ehmer’s arrest was unlawful; it followed the execution of a validly issued arrest warrant.

Although the consent to search was secured on the same day that Ehmer encountered the FBI at the checkpoint, the arrest and advice of rights constitute intervening circumstances.

Because the sweep of the horse trailer was conducted to ensure the horse’s well-being, there is no misconduct, flagrant or otherwise to deter. The validly executed written consent secured from Ehmer is an independent legal source justifying the search; it is also proof of attenuation because there was no exploitation of the alleged illegality. The agents did not use their discovery of the revolver as the basis for the arrest or as leverage with Ehmer to secure his consent. Additionally, in light of Ehmer’s voluntary statements to agents during his first encounter with them about the gun and rifle, had Ehmer refused to consent, agents had more than enough information to seek and obtain a search warrant. Consequently, the items in the Tahoe would have inevitably come to light even absent Ehmer’s consent.

Particularly instructive is United States v. Delancy, 502 F.3d 1297 (11th Cir. 2007). In that case, the court rejected the officers’ “protective sweep” rationale for entering defendant’s home, but nevertheless sustained the search because defendant validly executed a consent to search form. The court reasoned that the form, which included cautions similar to those in this case, constituted an intervening event that helped purge any taint from the initial unlawful entry.

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Id. at 1311. The court also observed that the officers did not exploit the sweep in any way to secure defendant’s consent. Id. at 1313-14. Thus, because the signed consent was an independent and valid basis to sustain the search, the court denied suppression and all evidence seized as a result of that consent was deemed admissible. Id. at 1315. See also United States v.

Christy, 739 F.3d 534, 541-43 (10th Cir. 2014) (where evidence supported officers’ conclusion that they had probable cause and could have obtained a warrant, suppression properly denied under the inevitable discovery doctrine).

IV.

Conclusion For the reasons set forth above, the government respectfully requests that defendant’s

Motion to Suppress Evidence be denied.

Dated this 20th day of January 2017.

Respectfully submitted, BILLY J. WILLIAMS United States Attorney

s/ Ethan D. Knight ETHAN D. KNIGHT, OSB #992984 GEOFFREY A. BARROW CRAIG J. GABRIEL, OSB #012571 Assistant United States Attorneys

Government’s Response to Defendant’s Motion to Suppress Statements and Evidence (#1708)

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