S. Amanda Marshall, United States Attorney, Stephen F. Peifer, Assistant United States Attorney, and David L. Atkinson, Assistant United States Attorney, District of Oregon, Portland, Oregon, Attorneys for Plaintiff.
Ellen C. Pitcher, Office of the Federal Public Defender, Portland, Oregon, Attorney for Defendant.
OPINION AND ORDER ON MOTION TO SUPPRESS
MICHAEL H. SIMON, District Judge.
A grand jury has indicted Christopher Lee Carlson ("Mr. Carlson" or "Defendant") and charged him with mailing threatening letters to five U.S. Senators and the Speaker of the U.S. House of Representatives in violation of 18 U.S.C. §§ 876(c) and 1114. The grand jury also charged him with six counts of perpetrating a hoax regarding a lethal pathogen in violation of 18 U.S.C. §§ 1038(a) and 175. Mr. Carlson moves to suppress evidence seized during several searches that he asserts were conducted in violation of his Fourth Amendment rights. See Mot. Suppress Evid., Dkt. 35. At Mr. Carlson's request, unopposed by the Government, the Court held an evidentiary hearing on April 3, 2013, pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Based on the following findings of fact and conclusions of law, the Court DENIES Mr. Carlson's Motion to Suppress.
FINDINGS OF FACT
I. The February 2012 Mailings
Between February 18 and February 20, 2012, approximately one hundred envelopes postmarked from Portland, Oregon, were mailed to Members of Congress and the media. Franks Hr'g Tr. 16-18 Apr. 3, 2013 (hereafter "Tr."). The envelopes contained a white powdery substance and a small photograph of the singer Johnny Cash holding a guitar and raising his middle finger, over which was superimposed a blog URL, "http://th3man1n6lack.tumblr.com, " and a Twitter feed, "@Th3_MIB." See Tr. 25; Ex. 6, Dkt. 64.
Each envelope also contained one of four typewritten notes. The notes expressed frustration with politicians, corporations, and lobbyists. One note stated, "It's time for the American Revolution 2.0" and was signed "The MIB." It concluded with the postscript, "Oh yeah, the powder. 50 Senators were randomly selected to receive this letter as opposed to the other one. Since I put the bug in ten of these letters, again randomly selected, there's a 20% chance that you've just been exposed. If you aren't wearing a biohazard suit, anyway." Ex. 3, Dkt. 51.
Another note began, "That powdery stuff that just fell out of this letter along with my calling card is just cornstarch and celery salt. It won't hurt you, promise.=)" This note was also signed, "The MIB" and ended with the sentence, "So please, for the sake of your countrymen, put on your big-boy pants or your big-girl panties, suck it up, and do the job you were elected to do." Ex. 5, Dkt. 53. The FBI ultimately determined that the white powder was a harmless combination of cornstarch and celery salt. Tr. 193.
About half of the letters were mailed in white envelopes with the return address of "The MIB, LLC, 2413 N.W. Burnside, Portland, Oregon 97209." Tr. 18-19; Dkt. 40-1 ¶ 9. The rest were sent in pastel-colored envelopes with the return address of "Miss Billie L. Themani, 1776 N. Black Road, Beaverton, OR 97005." Tr. 19; Dkt. 40-1 ¶ 9.
The public media reports on these mailings did not contain all of these details. Although the media reported on the "The MIB, LLC" return address found on the white envelopes, there was no public disclosure of the Johnny Cash photograph, the "Miss Billie L. Themani" return address, or the specific words used in the notes, in particular the instruction to "put on your big-boy pants or your big-girl panties." Tr. 28-29, 36, 48.
II. Adrienne Carlson Contacts the FBI (March 5, 2012)
Before March 5, 2012, the Federal Bureau of Investigation ("FBI") had not identified any witnesses or suspects for these mailings. Tr. 100. Then, around 3 p.m. on March 5, Special Agent ("SA") MariJo Byers of the FBI took a call from a woman named Adrienne Carlson. Tr. 8-9. Ms. Carlson said she was calling about "some white powder letters, " but she asked SA Byers to call her back because she was afraid that her husband would see from her phone records that she had called the FBI. Tr. 9. When SA Byers called Ms. Carlson back, Ms. Carlson said she was certain that her husband, Christopher Carlson, was sending threatening letters to U.S. Senators that contained photographs of Johnny Cash and a white powder made up of celery salt and cornstarch. Tr. 9-10. She also told SA Byers that her husband had been behaving erratically and had left their apartment with a shotgun and a handgun. Tr. 10. Ms. Carlson wanted someone to come to her apartment right away to collect Mr. Carlson's computer and confirm her allegations. Tr. 11. SA Byers, who has significant experience handling telephone calls from the public, described Ms. Carlson's demeanor during this telephone call as articulate, clear, and sober. Tr. 12.
SA Byers passed this information on to the FBI "command post" working on the white powder letters. Tr. 11. Special Agents Craig Mueller and Ronald Stankye, who were working on the case, had already learned that Ms. Carlson had called the Vancouver Police Department the day before, on March 4, 2012, with similar information. Tr. 30. At 4 p.m. on March 5, 2012, SA Mueller and SA Stankye called Ms. Carlson and interviewed her by speakerphone. Tr. 31. Present during this telephone interview were Special Agents Jennifer Burnett, Wade Mutchler, Rick Werder, and Travis Gluesenkamp. Tr. 32, 201.
During the telephone interview, Ms. Carlson explained that her relationship with her husband was emotionally abusive and that she had been staying at a domestic violence shelter. Tr. 32-33, 101. Ms. Carlson recounted returning to her apartment sometime around President's Day weekend. Tr. 35. She stated that on a table in the bedroom that she and her husband used as an office, she saw stacks of white business envelopes, letters, and what she described as "post-it-sized" copies of a photograph of Johnny Cash raising his middle finger. Tr. 35-37. She also explained that the photograph had a URL on it for a Tumblr blog. Tr. 37. She added that Mr. Carlson, who was seated at the computer, read to her from a letter he had written; Ms. Carlson remembered it had a line in it about pulling up "your big-boy pants and big-girl panties." Tr. 36. According to Ms. Carlson, Mr. Carlson told her that if the letters he sent did not receive adequate attention, he would send another batch containing lye, and if that did not work, he would send improvised explosive devices. Tr. 34.
Ms. Carlson also recounted that her husband had asked her to return to the apartment the following weekend. Tr. 39-40. He told her that he wanted her to drive him past a specific post office in southeast Portland to look for video surveillance cameras that might have recorded him mailing letters. Tr. 40. She did as he requested. Id.
In addition, Ms. Carlson told the agents that her husband knew that she had changed her name from "Billie Lee Cesano" and "Billie Lee Williams" to "Adrienne Lee Carlson." Tr. 47-48. She also spoke in some detail about her husband's mental health and medications. Tr. 45-47. Ms. Carlson's own mental health and use of medications, however, were not mentioned. Tr. 48-49, 63. SA Mueller testified that during this call, Ms. Carlson sounded normal, lucid, and articulate. Tr. 49. She was easy to understand and did not seem intoxicated, delusional, or otherwise unreliable. Id.
Based primarily on this March 5 telephone interview, SA Gluesenkamp prepared an affidavit for a search warrant. Tr. 52, 201-202, 206. He submitted the affidavit to the Department of Justice early in the morning of March 6 for approval before he presented it to a U.S. Magistrate Judge. Tr. 202-203, 205.
III. In-Person Interview of Ms. Carlson (March 6, 2012)
Shortly after midnight on March 6, Ms. Carlson called the FBI again and was put through to SA Mueller. Tr. 53. She told SA Mueller that she had found a Wal-Mart receipt in her apartment showing the purchase of envelopes and labels on February 14, 2012. Tr. 53-54.
Around 2:30 p.m. on March 6, SA Mueller and Special Agent Jessica Anderson went to Vancouver, Washington, to interview Ms. Carlson in person at the Carlson residence. Tr. 55. Ms. Carlson invited them into the apartment and showed them the Wal-Mart receipt and the office where she had seen the mailing supplies. Tr. 55-56, 140. SA Anderson and SA Mueller both testified that Ms. Carlson was rational ...