United States District Court, D. Oregon
ORDER DENYING DEFENDANT DUANE LEO EHMER'S MOTION
(#1708) TO SUPPRESS
J. BROWN, United States District Judge
matter comes before the Court on Defendant Duane Leo
Ehmer's Motion (#1708) to Suppress Statements and
January 13, 2017, Ehmer filed his Motion in which he moves to
suppress the alleged custodial statements that he made
without warnings consistent with Miranda v. Arizona,
384 U.S. 436 (1966), and to suppress evidence obtained during
a search of his truck and trailer that Ehmer contends was
conducted in violation of the Fourth Amendment to the United
January 20, 2017, the government filed a Response (#1754) to
Ehmer's Motion in which it agrees it will not introduce
Ehmer's statements in its case-in-chief, but in which the
government also contends the Court should not suppress the
evidence obtained as a result of the consent search of
Ehmer's truck and trailer.
February 6, 2017, the Court conducted an evidentiary hearing
on Ehmer''s Motion. At the beginning of the Pretrial
Conference on February 7, 2017, the Court also heard oral
argument on Ehmer's Motion, after which the Court
directed the parties to submit supplemental memoranda.
government filed its Supplemental Memorandum (#1865) in
Opposition to Ehmer's Motion on February 9, 2017,
together with the Affidavits of Todd T. Scott (#18 66) and
Katherine Armstrong (#1867). Ehmer filed his Supplemental
Reply Memorandum (#1885) on February 13, 2017.
Court finds the record is now complete and, for the reasons
that follow, DENIES Ehmer's Motion.
on the record as a whole the Court finds the following facts by
a preponderance of the evidence for purposes of resolving
arrived at the Malheur National Wildlife Refuge (MNWR) to
participate in the occupation of the MNWR no later than
January 8, 2016. After several leaders of the occupation were
arrested and LaVoy Finicum was fatally shot by law
enforcement on January 26, 2016, Ehmer left the MNWR on the
afternoon of January 27, 2016, driving his truck and towing a
horse trailer that contained, among other things, his horse,
Hellboy. At the time of his departure, Ehmer was emotional
and fearful of being shot by law-enforcement officers.
Ehmer left the Refuge, law enforcement had set up two
roadblocks a few miles in both directions from the entrance
to the MNWR. As he drove away from the MNWR, Ehraer
encountered the roadblock to the east of the MNWR at
approximately 2:00 p.m. At that roadblock law enforcement
blocked the road with barricades and Bearcats (armored
vehicles) to prohibit drivers on the road from passing unless
law enforcement permitted them to do so.
encountered the roadblock, Ehmer stopped his truck and
stepped out of his vehicle pursuant to commands of
law-enforcement officers who pointed their firearms at Ehmer
and his truck. After Ehmer left his truck, officers searched
him for weapons. At that time officers also conducted a sweep
(referred to hereinafter as the "first protective
sweep") of Ehmer's truck and the horse trailer to
determine whether anyone else was in them, but the officers
only found Hellboy in the horse trailer.
outside of his truck at the roadblock, Ehmer and FBI Special
Agent Todd Scott, who was assigned as an FBI crisis
negotiator during the occupation of the MNWR, spoke. Their
conversation was relaxed and cordial in tone. Ehmer told
Agent Scott that nine people still remained at the MNWR and
that some (though not all) wanted to leave. Agent Scott
proposed that Ehmer return to the MNWR and inform those who
remained that anybody who did not have a pending arrest
warrant would be permitted to pass through the roadblock
peacefully and to leave. Agent Scott also told Ehmer that
there was not any pending warrant for Ehmer's arrest and
that Ehmer would be permitted to pass through on his return
to the roadblock within an hour. After Ehmer agreed, he
returned to the MNWR with his truck and trailer.
approximately 3:15 p.m. Ehmer approached the east roadblock
again. As before, Ehmer was given commands to leave the
truck, and he complied. Officers searched him again for
weapons and conducted a second sweep of his truck and the
horse trailer (hereinafter referred to as "second
protective sweep"), which included the "tack
room" of the trailer. Again, officers did not locate any
other individuals in either the truck or the tack room of the
trailer, and they did not search those compartments any
further, except that during the second protective sweep of
the horse trailer FBI Special Agent Christopher Hilgers
unbuckled a closed saddlebag and observed a black-powder
revolver. Agent Hilgers seized the handgun and did
not search any further.
Agent Scott spoke with Ehmer again. Agent Scott informed
Ehmer that, contrary to Agent Scott's previous assurance
to Ehmer, there was a pending warrant for Ehmer's arrest, and,
therefore, Ehmer would not be allowed to pass through the
roadblock and to leave. Agent Scott apologized to Ehmer for
previously telling him that there was not a warrant for his
arrest. Ehmer was placed in handcuffs and searched more
thoroughly than when he initially approached the checkpoint.
Ehmer remained in handcuffs, Ehmer and Agent Scott continued
to speak, and, again, they conversed in a relaxed tone. At
one point another officer brought the black-powder revolver
to Ehmer to inquire how to render the firearm safe. Ehmer
stated the only way he knew how to do so was to fire the
weapon, but the officers did not fire the weapon and later
found another way to render it safe.
evidentiary hearing Ehmer testified that after his second
approach to the roadblock, officers also questioned him about
a maroon pouch that was in his truck and as to whether he
knew the contents of that pouch. Ehmer testified his response
was that he had never opened the pouch. Agent Scott, however,
testified he did not recall any questioning of Ehmer about a
maroon pouch at the roadblock, was not aware of anything
related to a maroon pouch at that time, and did not note
anything about a maroon pouch in his report.
continued to be cooperative and to express a desire to find a
peaceful resolution to the occupation of the MNWR. Eventually
Ehmer was placed in a van and driven to the Tactical
Operations Center in Burns, Oregon.
Ehmer was transported to Burns, FBI Special Agent Elden
Esperas (who had not been at the roadblock) was asked by a
superior officer to attempt to obtain Ehmer's consent to
search his truck and trailer. Agent Esperas located Ehmer in
the back of a Bearcat where Ehmer remained in handcuffs with
two armed officers in the front seat. Agent Esperas got into
the back of the Bearcat with Ehmer and introduced himself.
Agent Esperas did not have a firearm with him when he entered
the Bearcat, and the two other officers in the front seat did
not display the firearms they were carrying.
Esperas requested Ehmer's consent to search his truck and
trailer as part of the FBI's investigation. Ehmer
testified Esperas told him that Agent Esperas would search
the truck and trailer regardless whether Ehmer gave his
consent, but Agent Esperas testified he did not make any such
Esperas read to Ehmer Form FD26, which was a printed
"consent" to permit law-enforcement officers to
search his truck and trailer. That Form indicates, among
other things, that the individual who signs the Form has
"been advised of [his] right to refuse consent, "
gives permission to officers to search the locations
identified therein voluntarily, and authorizes agents to
"take any items which they determine may be related to
their investigation." See Gov't Resp. (#1754-1), Ex.
A. Because Ehmer agreed to the "consent search, "
his handcuffs were undone so that he could write on Form FD2
6 and confirm that consent. Ehmer wrote "97 Red Chevy
Taho[e]" and "white horse trailer old" in the
space provided to identify the locations where Ehmer
consented to be searched, and Ehmer signed and dated the
Form. Agent Esperas also signed the Form as a witness. This
discussion between Ehmer and Agent Esperas was
conversational, and Ehmer was cooperative throughout this
following day, on January 28, 2016, FBI Special Agent Brian
Kelley and other officers searched Ehmer's truck and
horse trailer pursuant to the consent that Ehmer had provided
the day before. In the truck Agent Kelley located 16 shotgun
shells that were spread throughout the truck, a cellular
telephone, a rifle, a bag of lead shot, a Samsung tablet, and
a maroon pouch that was underneath the passenger seat of the
truck. Agent Kelley was not previously aware that there might
be a maroon pouch in the truck.
maroon pouch contained cash, checks, receipts, identification
cards, and credit cards that all reflected names associated
with the Friends of the MNWR (a nonprofit organization that
supports the MNWR and maintains an ...