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United States v. Ehmer

United States District Court, D. Oregon

February 16, 2017



          ANNA J. BROWN, United States District Judge

         This matter comes before the Court on Defendant Duane Leo Ehmer's Motion (#1708) to Suppress Statements and Evidence.

         On 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 States Constitution.

         On 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.

         On 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.

         The 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.

         The Court finds the record is now complete and, for the reasons that follow, DENIES Ehmer's Motion.


         Based on the record as a whole[1] the Court finds the following facts by a preponderance of the evidence for purposes of resolving this Motion:

         Ehmer 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.

         Before 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.

         When he 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.

         While 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.

         At 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.[2] Agent Hilgers seized the handgun and did not search any further.

         Meanwhile, 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[3] 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.

         While 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.

         At the 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.[4]

         Ehmer 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.[5]

         After 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.

         Agent 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 statement.[6]

         Agent 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 interaction.

         The 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.

         The 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 ...

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